Freedom of Expression on Trial in Thailand

A number of high-profile cases alleging insults against the Thai monarchy and breaches of the country's 2007 Computer Crimes Act have put the spotlight on freedom of expression in Thailand, and the role of the courts in assessing these matters. Since the military coup in September 2006, Thailand's ranking in the Reporters Without Borders press freedom index has dropped from 107 in 2005, the year before the country's last military coup, to 153 in 2010.

From web-boards to courtrooms

In mid-February, the case of Chiranuch Premchaiporn, head of the news site Prachatai – a sort-of Thai version of the Huffington Post – was postponed until September, as the slower-than-expected hearings process meant the case would delay other trials on the judge's schedule.

Chiranuch has not been accused of personally saying anything negative about the monarchy. Ten anonymous comments, long-since removed from the Prachatai web-board, have been singled out by state prosecutors as insulting the monarchy. If found guilty of the charges, Chiranuch faces a possible five decade sentence.

The suspension of the Prachatai case came after the trial of Daranee Chanchoengsilpakul, a prominent red-shirt supporter better-known as "Da Torpedo", was ruled a mistrial. Daranee's lawyer Prawais Prapanuyool, speaking after the appeal verdict was read out, said that his client was seeking release on bail as soon as possible, but that "we need one million Thai Baht to cover this, we are appealing for financial assistance". She has already spent a year and half in jail.

When Daranee was originally convicted, the trial was held behind closed doors, allegedly on national security grounds, but now the legal can has been kicked over to the country's Constitutional Court. "We will request that the Constitutional Court rule on whether the original trial was against the Constitution or not", said the court official, reading aloud the appeal verdict to a small gathering of reporters, observers and the accused. Daranee still stands accused of insulting Thailand's monarchy, known euphemistically as "the institution" in many legal and political commentaries, and she might have to face a retrial even if the Constitutional Court rules in her favor.

Though separate, the Prachatai case and the Da Torpedo case are linked in more than one sense of the word. One of the charges against Chiranuch is based on a "hotlink" appearing on the Prachatai web-board, where members of the public posted comments, to an audio file of a speech made by Daranee in which she criticized the monarchy. Although the link was to another website, the file was transcribed and added to the police charges against Chiranuch. However, there is no case against the file's uploader, who remains unidentified.

During cross-examination by Prachatai's lawyers, Thanit Prapathanan, a legal advisor to Thailand's Ministry for Information and Communications Technology, said that even if a webmaster took down messages that were deemed as insulting the monarchy, a lawsuit could still ensue. Moreover, during the court proceedings in the Prachatai case, the judge permitted the statements that were deemed lèse majesté to be read aloud - though this was undermined somewhat by poorly functioning microphones in the room.

Ultimately, the fact that the court agreed with Daranee's appeal, confirming that her original, in-camera trial was unconstitutional, has given some hope to freedom of speech advocates in Thailand. It shows that the judiciary in Thailand can work on an impartial level, according to Chiranuch, and that this judicial competence "can support freedom of expression here". Benjamin Zawacki, Amnesty International representative in Thailand, however noted that "the lèse majesté law itself runs counter to Thailand's freedom of expression obligations under the International Covenant on Civil and Political Rights."

In a third high-profile case, Tantawut Taweewarodomkul, webmaster of the red-shirt website in the US known as NorPhorChorUSA, told the court that he gave his original statement under pressure from police, and that he was concerned for the welfare of his ten-year-old son, whom he is raising as a single father. On 22 February, just hours before seven redshirt leaders, detained since 19 May 2010 were freed on bail, Surachai Danwattananusorn, a leader of a redshirt splinter group called “Red Siam”, was arrested for remarks made in December that were deemed offensive to the monarchy.

An uneasy present, an uncertain future

The legal prohibitions on what can and cannot be said in Thailand remain in place. Nicholas Farrelly of the Australian National University, who co-runs the widely-read New Mandala blog on Southeast Asia, argues that "anxiety about what kind of speech will draw the attention of the authorities is completely understandable, and I doubt that this will change much in the wake of Da Torpedo's recent success or the suspension of Chiranuch's trial."

All told, these various laws have had "a chilling effect" on free speech and online debate in a country where web use is growing, according to Danny O'Brien of the Committee to Protect Journalists. Indeed more than 26 percent of Thailand's 66 million people are online, according to Supinya Klangnarong of the Thai Netizens Network.

Thai authorities, however, continue to block websites containing what they deem offensive content or material that may undermine national security. According to Niw Wong of the iLaw Project, blocking websites increases during times of political unrest, for example during the anti-government red-shirt protests last year. She said that "during the protests of March-May 2010, the level of blocking increases very significantly. In March 2010 alone, 9,672 URLs [were]suspended - the highest number of all time."

While lèse majesté is an offense in Thailand, the country's constitution simultaneously upholds freedom of expression. Chiranuch's case in particular will likely be seen as a marker for how well freedom of speech and internet freedoms are protected in a politically unsteady country. With national elections on the horizon this year and the revered King Bhumibol Adulyadej in hospital, the politically charged context that led to restrictions on freedom of speech last year could once again appear.