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We call on the Thai government to respect international human rights standards on the right to freedom of expression and information under Article 19 of the Universal Declaration of Human Rights (UDHR) and under Article 19 of the International Covenant on Civil and Political Rights (ICCPR), both of which protect the right to freedom of expression of individuals, as well as their right to seek, receive and impart information, including online. We also urge the government to protect human rights in line with the UN Guiding Principles on Business and Human Rights.

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We denounce the government’s widespread failure to comply with its international human rights obligations[3] and use of undemocratic regulations, orders and restrictive laws.[4] Of particular concern are the Computer Crime Act (CCA), and the royal defamation (lèse-majesté) and sedition provisions under Thailand’s Criminal Code,[5] which grant the authorities sweeping powers to restrict online speech and access to information online.

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The ministerial decree is extremely dangerous and represents Thailand’s latest attempt to intensify state censorship online by controlling service providers. A similar decree was passed in 2017 to establish a content takedown regime by request of both platform users and the Thai authorities (hereinafter “the 2017 decree”).[6] The new ministerial decree replaced its 2017 predecessor and became effective on December 25. The ministerial decree mandates that content that is alleged by platform users or the general public as violating Section 14 of the CCA[7] be removed by service providers within 24 hours of receiving the complaint. For take down notices issued by DES officers, the ministerial decree stipulates a slightly different time limit for the removal of content. Content alleged to violate Section 14(1) on false data injurious to “another person or the public” must be removed within seven days, while those falling under Sections 14(2) and (3), which concern national security, and offenses against the Kingdom, respectively, must be removed within 24 hours.

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Moreover, the ministerial decree expands the powers of the Digital Economy and Security (DES) officers, granting them the authority to issue orders to service providers, without court authorization or judicial oversight.

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Frequently used to limit expression online, Section 14 of the CCA is highly problematic and creates several loosely-defined offenses. Content is deemed unlawful if it damages the public, creates panic, causes harm to public infrastructure, national security or security of the Kingdom, public security or economic security, or is of pornographic nature:

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Section 14 of the Computer Crime Act B.E. 2560 (2017):

“Any person who commits any of the following offenses shall be liable for imprisonment for a term not exceeding five years or to a fine not exceeding one hundred thousand Baht or to both:

(1) dishonestly or by deceit, bringing into a computer system a computer data which is distorted or fake, whether in whole or in part, or a computer data which is false, in a manner likely to cause loss to the public, where it is not the commission of an offense of defamation under the Penal Code;

(2) bringing into a computer system a computer data which is false in a manner likely to cause loss to the maintenance of national security, public security, national economic security or an infrastructure involving national public interest or in a manner causing public anxiety;
(3) bringing into a computer system any computer data which constitutes an offence relating to security of the Kingdom or an offence relating to terrorism under the Penal Code;

(4) bringing into a computer system any computer data of a pornographic nature, provided that such computer data is accessible by the general public;

(5) disseminating or forwarding a computer data with the knowledge that it is a computer data under (1), (2), (3) or (4).[8]

The CCA is notorious for being a tool to prosecute online dissent:[9] more than 154 people have been charged under the CCA in 174 cases, from the start of political demonstrations in July 2020 to October 2022.[10]

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The ministerial decree does not provide an avenue of recourse for content owners or key stakeholders to dispute complaints if the takedown notice is filed by users or the general public. In cases where a removal notice is submitted by DES officers, content owners and stakeholders may contest the decision by appealing to the Permanent Secretary of the MDES or a person of their designation. In such cases the appeal would be overseen by the same ministry that issued the notice in the first place, thereby ruling the possibility of independent oversight. Another issue of concern is that under the decree, service providers are not required to inform content owners of any takedown notices, irrespective of their origin.

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Service providers will be pushed to comply-first-evaluate-later, which will increase censorship online. By mandating service providers to comply with any complaint they receive, irrespective of its basis, necessity, or proportionality, the Thai government is putting service providers under immense pressure to remove content. This will likely result in service providers removing content with haste to avoid penalties, to the detriment of people’s right to freedom of expression and information.

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Service providers are criminalized following a presumption of non-compliance. If they fail to comply with takedown requests, service providers are presumed to cooperate, support or consent the commission of an offense per Section 15 of the CCA. They will be therefore liable to prosecution and could be sentenced to a maximum term of five years in prison and a fine not exceeding 100,000 baht, or both. Criminalizing service providers immediately following a presumption of non-compliance also means that the service providers charged have to provide evidence to show they are innocent. Shifting the burden of proof for innocence onto the accused service provider is extremely problematic and inconsistent with the legal principle that anyone accused of a criminal offense must be considered innocent until proven guilty. In most cases, the plaintiff, being the party that makes a legal complaint, has to supply evidence to support the allegations.

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We commend and stand in solidarity with all people speaking truth to power, pushing back against dictatorship and fighting for true democracy in Thailand. We urge the Thai government to uphold the obligation to ensure the enjoyment of the right to freedom of opinion and expression, as well as the right to receive and impart information and ideas, by taking all the necessary means to safeguard these rights, including by refraining from pressuring on service providers to enforce censorship through arbitrary regulations. This recent ministerial decree appears to be yet another tool of control for the authorities to silence critical dissent, and a reflection of the digital dictatorship in Thailand.

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In light of these concerns, the ASEAN Regional Coalition to #StopDigitalDictatorship calls on the Thai government to:

• Revoke the ministerial decree and refrain from curtailing freedom of expression and information by forcing service providers to become proxies of censoring online content;

• Repeal or amend laws and regulations that restrict freedom of expression and independent media, including but not limited to criminal defamation, lèse-majesté and sedition provisions under the Criminal Code, and the Computer Crime Act, to bring them in line with Articles 19 of the UN Declaration on Human Rights (UDHR) and of the International Covenant on Civil and Political Rights (ICCPR);

• Ensure that any content removal laws and policies only require content to be restricted with a judicial order; clear and unambiguous criteria; and full compliance with due process, in accordance with the Manila Principles on Intermediary Liability;

• Cease any attempt to pressure or criminalize ISPs, technology companies, and telecommunications companies to remove online content in the absence of properly tailored criteria that align with the rights to free expression and information and privacy;

• Take active steps to ensure that any cybersecurity policy or law enables technology companies, ISPs, and telecommunications companies to conform to their human rights duties under the UN Guiding Principles on Business and Human Rights (UNGPs); and

• End all legal proceedings against individuals facing investigation, charges or prosecution initiated by State authorities for engaging in legitimate activities protected by international human rights law.

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In line with the UN Guiding Principles on Business and Human Rights, we call on implicated ISPs to resist the ministerial decree and to refrain from removing or moderating content online in contravention to the rights to free expression and access to information.

Finally, we call on non-governmental actors to join our call to protect our online democracy and to stand in solidarity by actively advocating for the immediate repeal of the ministerial decree and by holding the Thai government accountable for any misuse of their powers to regulate the online space.

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For more information about joining our regional campaign to #StopDigitalDictatorship in Southeast Asia, and to support our work to restore digital democracy in the region, access our online campaign at: https://www.manushyafoundation.org/stop-digital-dictatorship-campaign

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For media enquiries, please contact:

• Emilie Pradichit, Founder & Executive Director, Manushya Foundation: emilie@manushyafoundation.org

• Debbie Stothard, Founder & Coordinator, ALTSEAN-Burma: debbie.stot@gmail.com

• Damar Juniarto, Executive Director, Southeast Asia Freedom of Expression Network (SAFEnet): damar@safenet.or.id

• Wahyudi Djafar, Executive Director, Institute for Policy Research and Advocacy (ELSAM): wahyudi@elsam.or.id

• Wai Wai Nu, Founder & Executive Director, Women’s Peace Network: waiwainu@womenspeacenetwork.org

• Chak Sopheap, Executive Director, CCHR Cambodia: chaksopheap@cchrcambodia.org

• Henry Koh, Executive Director, ILGA Asia: henry@ilgaasia.org

• Yin Yadanar, Director, Free Expression Myanmar: yin@freeexpressionmyanmar.org

• Ben Swanton, Co-Director, The 88 Project: ben@the88project.org

• Lisa Garcia, Executive Director, Foundation for Media Alternatives: lgarcia@fma.ph

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Footnotes

[1] Ministerial Notification of Ministry of Digital Economy and Society (MDES) re: Procedures for the Notification, Suppression of Dissemination and Removal of Computer Data from the Computer System B.E. 2565 (2022), available at: http://www.ratchakitcha.soc.go.th/DATA/PDF/2565/E/254/T_0057.PDF. Please see Annex 1 for the unofficial translation of the Ministerial Notification in English by the Manushya Foundation.

[2] The hashtag #WhatsHappeningInThailand refers to the human rights and democratic situation in the country, and is being used by democracy activists, civil society and human rights advocates to inform the world about human rights violations and attacks on democracy perpetrated by the Thai military-backed government.

[3] Article 19 of the International Covenant on Civil and Political Rights (ratified by Thailand on 29 October 1996); UN Human Rights Council, Report of the Working Group on the Universal Periodic Review (3rd Cycle), (21 December 2021), available at: https://documents-ddsny.un.org/doc/UNDOC/GEN/G21/383/31/PDF/G2138331.pdf?OpenElement (Thailand received 18 recommendations on the freedom of expression); Article 19 of the Universal Declaration of Human Rights; UN Guiding Principles on Business and Human Rights; UN Human Rights Council, The promotion, protection and enjoyment of human rights on the Internet, UN Doc. A/HRC/38/L.10/Rev.1, (4 July 2018), available at: https://www.osce.org/fom/78309?download=true (“the same rights that people have offline must also be protected online, in particular freedom of expression, which is applicable regardless of frontiers and through any media of one’s choice”).

[4] See e.g. Manushya Foundation, Thailand’s Third UPR Cycle Factsheet: Digital Rights, (9 September 2021), available at: https://www.manushyafoundation.org/thailand-third-upr-cycle-factsheet-digital-rights; Manushya Foundation, Thailand’s Third Universal Periodic Review Cycle: Everything You Need to Know about #WhatsHappeningInThailand, (15 October 2021), available at: https://www.manushyafoundation.org/thailandthird-upr-cycle-factsheets; Manushya Foundation, Joint Statement - Thailand: Stop Weaponizing 'COVID-19' to Censor Information “Causing Fear” and Crack Down on Media and Internet Service Providers, (4 August 2021), available at: https://www.manushyafoundation.org/joint-statement-stop-weaponizing-covid19-to-censor-information; Manushya Foundation, Joint Solidarity Statement - Thailand: Stop Digital Dictatorship Over Online Freedom #StopDigitalDictatorship #WhatsHappeningInThailand, (25 October 2020), available at: https://www.manushyafoundation.org/statement-th-onlinefreedom-protests

[5] Section 112, often referred to as lèse-majesté law, provides a penalty of up to 15 years’ imprisonment for anyone who “defames, insults or threatens the King, the Queen, the Heir-apparent, or the Regent”; Under Section 116, known as sedition law, an act is considered seditious where it is carried out to incite change in the country’s laws or the Constitution “by the use of force or violence;” raise “unrest and disaffection amongst the people;” or contribute to the people’s infringement of the laws. It carries a penalty of up to seven years’ imprisonment. See Thai Criminal Code B.E. 2499 (1956), available at: https://library.siam-legal.com/thai-criminal-code/

[6] Ministerial Notification of Ministry of Digital Economy and Society (MDES) re: Procedures for the Notification, Suppression of Dissemination and Removal of Computer Data from the Computer System B.E. 2560 (2017), available at: https://ictlawcenter.etda.or.th/files/law/file/89/7ac3fba2f9864b7e52bf3c784ad153b2.pdf; See also Freedom House, Freedom on the Net Thailand 2022: Thailand, (2022), available at: https://freedomhouse.org/country/thailand/freedom-net/2022

[7] Computer Crime Act B.E. 2560 (2017), available at: http://web.krisdika.go.th/data/document/ext809/809777_0001.pdf

[8] Computer Crime Act B.E. 2560 (2017), available at: http://web.krisdika.go.th/data/document/ext809/809777_0001.pdf

[9] Engage Media, Thailand Computer Crime Act: Restricting Digital Rights, Silencing Online Critics, (8 June 2022), available at: https://engagemedia.org/projects/thailand-freedom-expression/; Manushya Foundation, Digital Rights in Thailand: Thailand's Third Universal Periodic Review Cycle, (9 september 2021), available at: https://www.manushyafoundation.org/thailand-third-upr-cycle-factsheet-digital-rights; Freedom House, Freedom on the Net 2022: Thailand, (2022), available at: https://freedomhouse.org/country/thailand/freedom-net/2022

[10] TLHR, October 2022: Individuals Charged For Political Reasons Reached 1,864 in 1,145 Cases, (3 November 2022), available at: https://tlhr2014.com/archives/50215