9/18/2019 Case | Freedom of Expression Documentation Center | น อ ลกฎหมายและค เส ภาพ   Reference 8 November 2013     The Court of Appeal set the scheduel for verdict announcement at the room no. 711 Criminal Court, Ratchada 9.30 AM.       8 November 2013   The Appeal Court set the schedule for verdict announcement at the room no. 711 Criminal Court, Ratchadapisek Road  around 10.00 AM.    The Appeal Court stated that if the defendant, an administrator of Prachatai web board, pay attention well enough, she must know that there is the accused message on the system and must delete it as fast as she can. But the defendant failed to delete one comment for 20 days. The defendant acted like she supported the accused message.    The Appeal Court agreed with the Court of First Instance’s verdict to sentence Chiranuch to 8 months imprisonment. However, the jail term was suspended for one year.   23 December 2015   Prachatai English reported that At the Criminal Court on Ratchadaphisek Road, Bangkok, the Supreme Court confirmed the earlier verdicts of the Court of Appeal and the Court o First Instance, sentencing Chiranuch Premchaiporn, Director of Prachatai, to eight months imprisonment and 20,000 baht fine with a jail term suspended for one year.    The Supreme Court convicted the Prachatai Director under Article 15 of the 2007 Computer Crime Act (CCA) for allowing an allegedly offensive comment about the monarchy to remain on the now defunct Prachatai webboard for 20 days.       The Verdict   Summary of the verdict of the Court of First Instance The main issues raised in the verdict can be summarized as follows below. Did the ten postings appear on the Prachatai Webboard? The judges ruled that as per Exhibit nos. J23-31, the screenshots made by the plaintiff contained many references to Prachatai Webboard, particularly the heading with the ostensible Prachatai logo in both Thai and English indicating that the pages were copied from the Prachatai Webboard. Also, the urls on the heading go http://prachatai.com/webboard. Thus, the exhibit was undeniably linked with the website. Also, instead of denying the accusation, the accused simply testified that she had never seen such postings on the Prachatai Webboard. In addition, the accused had stood as a witness in a case against “Bento” (Note: the case against Bento was another case in which a user of the Prachatai Webboard was prosecuted as per Exhibit no. J32. And in that case, Chiranuch was examined as a service provider). She admitted that the posting was there in Prachatai. The Court found that the ten postings were an insult to the King, the Queen and the Heir Apparent and thus a breach of the Computer-related Crimes Act.  Did the accused post the messages herself?   The judges ruled that the plaintiff did not state that the accused was the person to have posted the messages to the Prachatai Webboard and since no actionable evidence was found in this case, it could not be construed that the accused had violated Section 14 (3) of the CCA. Was the accused a service provider as per Section 15 of the CCA?  The judges ruled that since the accused was a witness in the case against Bento, which stemmed from a message posted to the Prachatai Webboard, and she gave her testimony in her capacity as Webmaster, and given that the information was compatible with the testimony made by the accused herself, the accused was, according to the law, considered service provider.  Liability of an intermediary: Coordination between MICT and webmasters  The judges ruled that Mr. Aree Jiworarak, competent officer as per the CCA and a government officer under the Ministry of Information and Communication Technology (MICT) an the petitioner in this case, found messages as per Exhibits nos. J23-32 and informed MICT of the matter. Nevertheless, Mr. Aree failed to clarify or confirm as to if or when he had informed the accused about the matter. It was not clear if the accused had been informed of the existence of such unlawful messages prior to or after their being removed. According to a prosecution witness, a MICT officer who applied for a court warrant to block access to the URLs, he had made the request for the warrant after messages as per Exhibit nos. J23-31 had already been removed from the Prachatai Webboard. As a result, even though Prachatai was asked by MICT to block access to the messages, it could no do so, since they were no longer available at that time.  Liability of an intermediary:  Circumstantial evidence not reliable  The plaintiff brought the accused’s hard disk drive over for inspection and found contents related to the King, including his image, being improperly doctored, etc. However, the Court deemed that such information is not a fact relevant to the case since it was not posted on the Prachatai Webboard. The evidence was too irrelevant to be brought in to judging whether or not the accused supported or consented tp the inputting of unlawful computer data.  Liability of an intermediary: The intermediary’s burden of proof   The judges ruled that as a webmaster, the accused is mandated to review any of the website’s activities and make decisions whether to post or remove any contents on the website. It is a kind of profession. As to the claim that during the time that the offence was allegedly committed, there were around 20,000-30,000 users of Prachatai Webboard, around 300 new topics were generated and around 2,800 comments were posted daily, and the accused was simply able to review headings of each topic. For topics with not many comments, it was possible for the accused to read and consider if they might cause damage to any persons or not, and if they were prohibited as per the CCA. And upon identifying such topics from reading their headings, the accused could then read through all comments and ensured that the contents were within the boundaries of the law.  But since there were too many topics to review, as Director of the website, the accused was obliged to hire more employees to carry out the monitoring.  https://freedom.ilaw.or.th/en/case/112#circumstance_of_arrest 6/26