Thai Internet censorship unconstitutional-Prachatai

April 23, 2012

Wronging your rights

Harrison George

Prachatai: April 21, 2012


Suppose you are the government and you want to block a website.

The constitution says you can’t do this.  At least not without good reason.

Section 45 says: ‘A person shall enjoy the liberty to express his or her opinion, make speeches, write, print, publicise, and make expression by other means.’  Blocking a website, like closing a newspaper or banning a book, is a clear violation of this liberty.

But there are exceptions.  Section 45 ponderously continues: ‘The restriction on the liberty under paragraph one shall not be imposed except by virtue of the provisions of the law specifically enacted for the purpose of maintaining the security of the State, safeguarding the rights, liberties, dignity, reputation, family or privacy rights of other persons, maintaining public order or good morals or preventing the deterioration of the mind or health of the public.’

In language that we can all understand, this means you can’t tell the troops to rebel, reveal military secrets to the Cambodians, or say anything else that endangers the country’s existence.  And note that in Thailand (which is not alone in this), the law considers lèse majesté to be a national security issue.

You can’t slag off on other people, expose their private affairs or use your right to freedom of expression to deprive them of their rights.

You cannot foment public disorder (which is why the PAD leaders have been careful to claim it wasn’t them who said ‘I know, let’s occupy the airport!’) nor can you corrupt public morals (such as by flashing porno pics in parliament, though heavens above, with what they download onto their smartphones, who there has morals that can still be corrupted?).

And you cannot advertise snake-oil cures for cancer or bamboozle the populace into idiocy.  (Yes, I realize that this calls into question the legality of the Ministry of Education, but I’m sure someone has worked a way around this.)

And there must be laws enacted to spell all this out.  It’s not something that the government can make up as they go along.

Great for citizens, problematic for governments of an authoritarian frame of mind (and is there any other kind?).

So, legally they can’t block your website until the Ministry of Internet Censorship Technology first applies for a court order, explaining just which exemption from ‘the liberty to express opinions’ you’ve fallen afoul of.

Now those of us who still believe in the tooth fairy, Santa Claus and Thai TV news might think that the courts will carefully inspect each dodgy website, give its content due consideration, and come to a judicious, circumspect and well-reasoned conclusion.

And if they say ‘close it down,’ then you can appeal.  If they say, ‘leave it be’, the MICT mandarins can appeal.  And more judges will be brought in to adjudicate.

Ho, ho, ho and did you find sixpence under your pillow this morning?

It turns out that the courts manage to issue orders blocking websites within a few days of getting a request from MICT.  In most cases, the order has been made on the same day the request arrived on their desk.

Now I’m all for efficiency, but this speed looks suspicious.  A couple of years ago, when political passions were running high and the powers-that-were thought that restricting access to information would ensure an ignorant calm, the courts were processing almost a thousand URLs a day.  How many dozen judges were working on this?

In the case of porn sites, even the slowest legal mind could come to a quick decision.  But these were not the normal case.  Three-quarters of the orders have concerned national security of the lèse majesté variant.

Were all these open-and-shut cases that could be decided in the blink of an eye?  Tested against a law with that notoriously vague language of ‘defame, insult or threaten’?

And then something happened that circumvented even these paper-thin safeguards.  The Abhisit government invoked the Emergency Decree (that Thaksin had engineered).  Now there was no need for court orders.  The government, through the CRES, could just order websites closed.  A licence to make it up as they went along.

They started doing this with at least some semblance of form.  They identified the sites they didn’t like and signed off on public orders banning them.  But this soon got boring, so they began operating in job lots (all domains with consecutive numbers between X and Y) and stopped bothering with the paperwork.

Not that the local websites that were blocked took much notice.  They simply re-opened under a new address, preferably offshore.  And if that got blocked, then another, and another.

And a funny thing about that Emergency Decree.  When the government used it to close off streets for their infamous ‘Life Fire Zones’, well, when the Emergency Decree was lifted, the streets returned to normal use.  But the uncounted thousands of websites blocked by the CRES remain blocked to this day.

But the government learned an important fact.  Everybody accesses the internet via an Internet Service Provider (ISP).  Why bother with all this twaddle of court orders and Emergency Decrees?  All they have to do, in the best manner of protection rackets round the world, is ‘request the cooperation’ of the ISPs.  A tradition that the current government is apparently happy to continue.

Legal provisions?  What law?

Constitutional guarantees?  What constitution?




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