Implied Consent, or We Know What You’re Thinking-Prachatai
June 10, 2012
Prachatai: June 4, 2012
The Computer-Related Crime Act, Section 15:
“Any service provider intentionally supports or consents to commit the offence under Section 14 in the computer system under his control, shall receive the same punishment as prescribed under Section 14.”
Well the syntax is shocking, but let me point out a potential ambiguity (which also exists in the grammatically more acceptable Thai original). Does this mean ‘gives intentional support or intentional consent’ (which I think the linguistically naïve reader would immediately assume)? Or could it mean ‘gives intentional support, or consent which can be either intentional or otherwise’ (which perhaps only perverted linguistic or legal minds might think of)?
I have the perversions of a linguist, not a lawyer, and perhaps there is some overriding legal principle on how to interpret pre-modified conjoined verbal phrases in acts of parliament. In which case my take on this may be completely erroneous (though I would bet folding money on crappy drafting, knowing whose mitts are all over this). But let us explore further.
Under the first interpretation of the ambiguity, a successful prosecution would require proof beyond reasonable doubt of the intention to support and/or the intention to consent. Under the second interpretation, the prosecutor would have to prove either intentional support or consent in any shape or form, intentional or not.
And when the learned and esteemed judges gave themselves an extra month to deliberate on the trial of the person who vets this article before publication (and who by this point is probably scratching her head and wondering whether a few months in prison would have been a lesser punishment), it looks like they decided on the second interpretation.
So somebody posts something on a webpage for which you are responsible and you, the webmaster, may end up in the clink if it can be shown in court that you consented in any fashion at all.
Enter the concept of ‘implied consent’.
‘Implied’ means ‘not explicit’. Suppose you are the prosecuting lawyer who not only has the entire court gallery against you, but you now have to prove something that is ‘implied’. That means not explicit, understood but unspoken, tacit, latent, veiled.
The thesaurus is not really helping you here. I think at this point, even if the judge has let you off the onerous task of proving that heavily coded postings do in fact constitute lèse majesté, I would give up and go home.
Ah, but the bench comes to your rescue. The categories of non-consent and ‘implied consent’ can be separated by time. If something happens and you do nothing for a certain length of time before acting to stop it, then your action proves you have not consented to it. Not guilty. But you do nothing for a longer period of time and then act, then sorry, you took too long and you have exhibited ‘implied consent’. Guilty as charged.
And what are these periods of time? Well in the Chiranuch case, the boundary between the two was set in the verdict at somewhere between 11 and 20 days. So far, so sort of clear.
But note that the Thai legal system does not use precedents as a determining factor. Somewhere between 11 and 20 days was the verdict this time. The next judge could say between 11 and 20 months. Or 11 and 20 seconds.
So if some website is really getting up your nose, you now know what to do. You post an anti-royal rant on a long-dormant thread that nobody’s looked at for months, and immediately pepper more current pages with your regular repetitive troll-like trash to divert attention. After waiting a judicious amount of time, you then walk into any police station in the country, Roi Et, for example, and make an accusation.
By the time the police and prosecutors and MICT boys have sorted their feet out, your IP address will be long deleted and some poor sod of a webmaster will be deemed to have given their implied consent and will be on their way to the shackles and stinking toilets.
Hang on, I shouldn’t be saying this, should I?