9/18/2019 Case | Freedom of Expression Documentation Center | น อ ลกฎหมายและค เส ภาพ The accused adduced that in the aftermath of the (2006) coup, there was a sharp increase in the number of comments posted to the Prachatai Webboard and more regulations   Reference had been meted out to enhance the monitoring, i.e., each poster was required to register as a member first. More monitoring was handled by Prachatai staff and if any unlawful contents were found, they were subjected to removal. Rules were developed as to the removal and more volunteers were solicited to help monitor the webboard. They were authorized to remove any improper messages without having to seek permission from anyone. It could be said that the accused was attempting to fulfill her role as an internet service provider, but it was deemed insufficient. Given that the Prachatai staff or volunteers or members designated by the accused to monitor postings in Prachatai Webboard did not carry out their duties and responsibilities as required by law, and there were no contractual obligations to which they had to abide. As a result, they might simply be complacen or neglect their duties and fail to monitor the postings as assigned. Therefore, the accused’s duty as a service provider to ensure that no unlawful postings be made still remained As to the claim that Prachatai is a project under the Foundation for Community Educational Media and aims to honestly feature information concerning human rights and democratization, the Court acknowledges that the right to freedom of expression is a fundamental right to which any citizen is entitled as per the Constitution of the Kingdom of Thailand. Also, the right to freedom of expression reflects good governance and democratization of a given entity or nation. Criticisms from the people, both positive and negative, provide an opportunity to improve the nation, given entity, and individuals for the better. As the accused opened a channel for the expression of opinions within a computer system, she was the service provider and it was within her control. The accused was then obliged to review the opinions and information that may have impacted national security as well as the liberty of others which deserves similar respect. Since it appeared that the accused consented to the importing of such comments or information as per Exhibit no. J32 in the computer system under her charge, as described above, the defendant cannot cite freedom of expression in order to be released from her liability. Liability of an intermediary: Duration as a determinant of liability  It was found that the accused allowed the topics as per Exhibit nos.  J 23-32 to appear on the Prachatai Webboard for 11, 1, 3, 2, 2, 1, 3, 2, 1 and 20 days, respectively. The judge thus ruled that since a webboard is a service through which people can discuss and exchange their views over the internet network and after posting any comments, the commen shall appear instantly. Therefore, unlike other traditional newsprints, it was not possible to verify the information prior to its being posted, and the monitoring could only be done after the postings had been made on the webboard. Nevertheless, Section 15 of the CCA fails to describe clearly as to the duration which may help to determine whether or not the service provider consents to the commission of an offence in a computer system under her or his charge. In addition, no legal requirement exists to determine the duration or a grade of the period of time within which a webmaster should be informed and allowed to remove any improper messages posted to her or his website.  On one hand, it would be unfair to the service provider as an intermediary to be held liable right away for consent to the importing of an offensive contents as per Section 14 into a computer system under her or his charge was made. But on the other hand, to allow a service provider to claim that she or he is unaware of the commission of the offence and therefore should be released from her or his responsibility and liability as a webmaster engenders dysfunction of the law and does not serve the interest of the law.  Reviewing the number of posts and comments made each day and the burden of monitoring as described, the Court believes that after the commission of an offence as per Section 14 has been made in the computer system under the charge of the accused, the accused should pay attention and tend to her duties to monitor, though it may take a proper amount of time to monitor the postings, it could be surmised that the accused was already aware of the importing of such illegal content. And if it takes too long for a webmaster to remove and stop the dissemination of such improper postings, it shall induce damage to concerned parties and cause grave impacts on national security.  It appeared that contents of Exhibit nos. J23-31 were shown on the webboard for 11, 1, 3, 2, 2, 1, 3, 2 and 1 day, respectively, the durations of which were deemed proper as far a the execution of duties of the accused as webmaster is concerned. It could not be said that the accused had been aware of the importing of information as per Exhibit no. J23-31, and that she gave consent to the commission of the offence.  But contents as per Exhibit no. J32 were available on the webboard under the charge of the accused for up to 20 days, and the duration was considered too long by the Court. Th accused could have discovered the contents and had them removed. Therefore, the accused was found to have neglected her duties and to carry them out within a proper timeframe. Should the accused tend to her duties to monitor all those postings properly, it is believed that she could have spotted the post as per Exhibit no. J32. This can be ascertained by the fact that the accused adduced that on 3 November 2008, she received a summons to testify in a case stemming from a post by Bento and the post is indicated in Exhibit no. J32. After receiving the summons, the accused compared the information and found the post in the Prachatai Webboard and then had its access immediately blocked. This indicates that should the accused perform her monitoring duties properly, it would not be difficult for her to spot any improper posts. The accused allowed the post to stay alive in the computer system for up to 20 days, and if she had not received the summons, it is unknown how long the post as indicated in Exhibit no. J32 would have stayed there. In this case, it could be construed that the accused has given implied consent to the importing of information as per Exhibit J32 into the computer system, and such information is deemed a breach as per Section 14(3) of the CCA. Therefore, the accused, as an internet service provider, is deemed an offender.  That the accused adduced that after receiving information from the officers, she immediately reviewed postings in her webboard and blocked access to information as indicated in Exhibit no. J32, was simply an act carried out after the commission of an offence and such an incidence can not  be cited as a reason for her exoneration. Verdict: One year imprisonment and a 30,000 baht fine  It is ruled that the accused is guilty as per Section 15 coupled with Section 14(3) of the CCA and sentenced to one year in prison and a 30,000 baht fine. But since the testimony and providing of evidence by the accused was deemed beneficial to the adjudication, it is reasonable to reduce the punishment by one-third, and an eight-month imprisonment an a 20,000 baht fine remain. And since the accused had never been sentenced to a jail term, and to give her a chance to change herself and become a good citizen of the country, her jail term shall be suspended for one year, but the fine must be paid. All other charges and petitions are dismissed.   Summary of the verdict of the Court of Appeal If there were too many discussions and comments, it is also the defendant's duty to hire more employees to assist her. Moreover, the defendant had graduated from journalism school and has worked in the media industry. She should have been aware that Thai society extremely places importance on the Royal Institution, one of main institutions of the state. The leave of her duty by neglecting lèse majesté messages on the web board was the act that affected on most of Thai people’s feelings, so it is too difficult to accept. So th defendant’s appeal petition is inadmissible.    In case of the plaintiff’s appeal petition that asked the court for extending the punishment and not to suspend the sentence, the Appeal Court considered that the jail punishment must strictly use with dangerous persons. Restricting the defendant's freedom in the prison will effect the economic, social and the defendant herself. The defendant was only the intermediary so the Appeal Court agreed with the Court of first instance to suspend the jail punishment.       23 December 2015 https://freedom.ilaw.or.th/en/case/112#circumstance_of_arrest 7/26