Day Thirteen: Free speech on trial in Thailand

Judge refuses instruction by law expert

Judge Kampot presided over Bangkok’s Criminal Courtroom 910 once again in the last round of Chiranuch Premchaiporn’s fight for justice. The trial of the webmaster of independent online news portal Prachatai continued into its final days. This is a landmark case closely watched by international diplomats and media. The decision in the case may serve to define criminal liability for intermediaries.

Chiranuch’s defence explained to the judge that the first witness, Professor Sawatree Suksri, an expert on Internet law at Thammasat University, would detail how web boards are generally administered.

The judge, in what can only be described as a slap-down, told the lawyer he was not interested in intellectuals’ opinions, only facts.

Chiranuch herself interjected that the defence intention was for the genesis of the Computer Crimes Act to be explained by an expert.

Judge: “If you’re only going to make a few points there is no need for three hours’ testimony. What is the issue you want the court to know about?”

Prof. Sawatree said she had evidence of the law regarding similar situations in other countries.

Judge: “Is this every country?”

Prominent international academic, Dr. Tyrell Haberkorn commented she had never before seen defendants having to negotiate for the right to give testimony.

At this point Prof Sawatree’s testimony was deferred after it was decided hear the second defence witness of the day, Prachatai web board user, Dr. Kitibhoom Chutasmith.

Dr. Khitiboom testified that he had used his spare time as a volunteer moderator for the Prachatai web board. The witness explained that he liked its wide range of opinions and the fact it gave space to marginal people.

Before the 2006 military coup, it was possible to use the web board without registering. After the coup, traffic to the web board increased greatly and it became necessary to register and use a password.

The web board had a feature to remove illegal comments. There was a button to alert the webmaster and on top of this the owners of the web board could remove such comments unilaterally.

Asked if he used the alert button, Dr Khitiboom replied: “Yes. Many times.”

The judge asked what was the criterion for judging if a comment was illegal.

Dr. Khitiboom replied that if a comment was suspect in any way, the comment was removed.

When the hearing continued we learned from the witness that after the coup there was a significant upsurge to the web board of comments in general and political comments in particular.

Defence asked the witness why he chose Prachatai to volunteer for.

Judge interposed: “I don’t need to know why you chose Prachatai above other web boards.”

Dr Khitiboom told the court he worked on the web board after his clinical duties, usually from 9:00 pm to midnight.

When asked why the web board was closed he explained it was because of the impending court case.

By now it was 10:30 am and the prosecution lawyer finally arrived, taking a place at his empty desk. We then waited a few minutes while the judge brought the prosecution lawyer up to speed.

In his response to a final question, Dr Khitiboom explained it was not just administrators who could remove comments, moderators were also empowered to do so without reference to administrators.

Following this testimony, the judge reverted to taking Prof. Sawatree to task. He said he required documents to back up her testimony otherwise he would dismiss it as opinion.

The judge went on to say: “Why should the court believe you?”

This is not only a rude attitude, impugning the professional integrity of Prof. Sawatree, but also exposes the weakness of the judge summary system as opposed to a full court transcript. If there were shortcomings in the professor’s testimony they would be documented in a transcript and she would be held accountable on that basis. As it is the judge is presumably responsible for his own summary and so will inevitably err on the side of caution.

Rubbing salt in the wounds, the judge went on to say: “The court, of course, knows about the law. It doesn’t need to be told.”

Perhaps feeling that he had gone a little too far the judge then said he was willing to accept documents but only if they were submitted well in advance.

Prof. Sawatree was then allowed to hand in her document which, judging by the size of it, would not have taken very long to digest anyway.

She managed to indicate to the court that US law allows 14 days for illegal comments to be removed by moderators before action is taken. The international norm is 10 to 14 days.

The basic principle is that moderators are not immediately responsible for the content of posts. But there is no clear regulation on this matter in Thai law.

The judge may have felt some legal rivalry with Dr. Sawatree, who is a prominent founder of the Enlightened Jurists (Khana Nitirat) group campaigning to reform Thailand’s lèse majesté laws through a controversial signature campaign.

There was now a short recess as we waited for the third witness, founding FACT signer and IT expert, Prof. Jittat Fakcharoenphol of Kasetsart University.

During this time the air conditioner sprang a leak and formed a puddle on the floor. Was it weeping in sympathy for Chiranuch?

Prof. Jittat (affectionately known to all as Ajarn Manow—Prof. Lemon) holds a PhD in Computer Science from UC Berkeley.

In 2006, Dr. Jittat wrote articles in Open Online Magazine on the management of comments on web boards. As a result Prachatai got in touch with him, with a view to applying his knowledge. When Prachatai board members’ terms expired in 2008 he was invited to join the board.

He indicated that at Prachatai volunteers could hide questionable comments on their own initiative and the Prachatai officers would go over them before making a final decision.

Chiranuch worried that the upsurge in posts had left her with an unmanageable situation so she invited Prof. Jittat to improve the system by devising a filtering mechanism.

There followed in the court some quite technical debate which can be summarised thus:

• Innocent web links in an original post could have become corrupted by the time police started investigating them.

• As part of Chiranuch’s attempt to control the flow of data she installed the Thunderbird email management application. Thunderbird manages multiple e-mail accounts by organising them and downloading them automatically to the client’s (in this case Chiranuch’s) hard drive. The contents of Chiranuch’s hard drive was held up by police as evidence of guilt. Incriminating data was downloaded automatically by Thunderbird and not directly by Chiranuch. Such data had not been reached by Chiranuch in her ongoing cleansing process and certainly was not personally downloaded by Chiranuch with intent.

The prosecution asserted that Chiranuch was ultimately responsible for the content of all the posts irrespective of number.

In the event Prof. Jittat’s system was not fully implemented because the web board was closed down before it could be.

Prof Jittat was shown a print out of an offensive post, with comments. When asked he responded that he had never seen it.

He further said that although the original post looked like a one from Prachatai, he was not so sure about the printed comments. They could have been created independently and made to look as if they fitted the original post. This is a drawback of relying on printouts.

Previous postings

“Day One: Thai webmaster facing 50 years for lèse majesté postings” https://facthai.wordpress.com/2011/02/04/day-one-free-speech-on-trial-in-thailand/

“Day Two: Thailand’s chief censor continues in Prachatai trial” https://facthai.wordpress.com/2011/02/08/day-two-free-speech-on-trial-in-thailand/

“Day Three: MICT’s legal advisor testifies: ‘Freedom has its limits’” https://facthai.wordpress.com/2011/02/09/day-three-free-speech-on-trial-in-thailand/

“Day Four: MICT and police lawyers testify” https://facthai.wordpress.com/2011/02/10/day-four-free-speech-on-trial-in-thailand/

“Day Five: Police scientist testifies for prosecution” https://facthai.wordpress.com/2011/02/12/day-five-free-speech-on-trial-in-thailand-postponed/

“Day Six: Two police ‘IT experts’ testify as Prachatai trial resumes” https://facthai.wordpress.com/2011/09/01/day-six-free-speech-on-trial-in-thailand/

“Day Seven: Police lèse majesté “experts” in Prachatai trial” https://facthai.wordpress.com/2011/09/02/day-seven-free-speech-on-trial-in-thailand/

“Day Eight: “I can’t remember.” “จำไม่ได้.” https://facthai.wordpress.com/2011/09/06/day-eight-free-speech-on-trial-in-thailand/

“Day Nine: Royal connection to Prachatai withhunt” https://facthai.wordpress.com/2011/09/10/day-nine-free-speech-on-trial-in-thailand/

“Day Ten: “Prachatai gives voice to democracy.” https://facthai.wordpress.com/2011/09/20/day-ten-free-speech-on-trial-in-thailand/

“Day Eleven: ““Prachatai exists to promote human rights”  https://facthai.wordpress.com/2011/09/21/day-eleven-free-speech-on-trial-on-thailand/

“Day Twelve: ‘Judge swamped, justice delayed’” https://facthai.wordpress.com/2011/10/11/day-twelve-free-speech-on-trial-in-thailand/