The tale of two trials: Da Torpedo and Chiranuch Premchaiporn

Originally published at Siam Voices on February 25, 2011 Over the last weeks both the international media and to some extent the local media as well have taken great interest in the trail of Chiranuch Premchaiporn, webmaster of the news site Prachatai, who has been charged for anti-monarchy comments on the website made by one of the readers, despite having complied with the authorities in removing them. See our previous coverage on the day when she was arrested (for the second time) back in September last year here and here.

Earlier this month the first part of the trial went ahead and lasted five days with the prosecution's testimonies marking the beginning. Guest contributor John Dent has observed the first day for Siam Voices and comments on the first testimony:

Day one of the trial started with the prosecution’s testimony of Mr. Aree Jivorarak, Thailand’s Ministry of Information and Communications Technology’s (MICT) IT Regulation Bureau chief. Among his other duties, Mr. Jivorarak is one of the key officials tasked with censoring Thailand’s Internet. (...)

For sake of argument, let us accept Mr. Jivorarak’s premise, that webmasters should (or even can) filter user comments. (...) While the specific guidelines are still being drafted, in practice it is up to the “authorized officer” at the MICT to decide retroactively what stays and what goes. Such decisions are often inconsistent and subject to the personal interpretation of Thai government officials.

So what is a webmaster to do? According to Mr. Jivorarak’s testimony, it would seem that they are expected to know what a censor may find inappropriate at a future date, before the content itself has been posted. Simply put, they are expected to peer into the hearts and minds of censors through space and time to decide what goes online. Not a minor achievement of precognition and quite a burdensome requirement for anyone operating a web site.

"Observations from the trial of Chiranuch Premchaiporn", John Dent, Siam Voices, February 6, 2011

In the following days, more witnesses for the prosecutionmade their testimonies. The website Freedom Against Censorship Thailand (FACT) have posted daily summaries from the hearings and here are some interesting tidbits:

[Day 2] A posting to Prachatai’s web forum included a hotlink to a Mediafile audio file of of a speech made from a Redshirt stage by Darunee Charnchoensilpakul, nicknamed Da Torpedo. Darunee was torpedoed with an 18-year sentence for this instance of lèse majesté in which she called for abolition of the Royals.

The audio file was not enough for our MICT. The file was transcribed and added to the police charges against Chiranuch. However, Mediafile was not blocked and no prosecution was initiated against the file’s uploader.

This raises a crucial legal question as yet untested. Does the Computer Crimes Act criminalise hotlinks?

[Day 3] The second witness for the prosecution, Thanit Prapathanan, a legal advisor to Thailand’s ICT ministry since 2005, (...) stated that any intermediary shares the same criminal liability as the poster. Creating a hub for people to communicate and share information made Prachatai liable for all its webboard’s users. (...)

Defence lawyers pointed out that the ICT ministry’s website itself linked to media hosting lèse majesté content. The witness stated that MICT could not delete content from third parties so was, therefore not liable for their content. This appears to contradict his statements of Prachatai’s liability for postings, comments and hyperlinks not their own.

[Day 5] Colonel Dr. Wiwat Sidhisoradej is a police scientist and has a doctoral degree in physics from Chulalongkorn University appearing for the prosecution. He copied Chiranuch’s laptop hard disk seized by the police on March 6, 2009 for forensic analysis. (...)

The most interesting part of the police scientist’s testimony was regarding the way email works. Thunderbird, an offline email client similiar to Microsoft’s Outlook application was found on Jiew’s laptop. (...) Dr. Wiwat readily conceded the probability that the images and postings were received by Chiranuch in email and were not redistributed by her. (...)

Col. Wiwat said that a computer user could not be in violation for simply receiving these emails.

After the last hearing on February 12 and with just five witnesses out 14 having given their testimonies, the trail will resume in September later this year, due to scheduling conflicts of the judges.

In a similar, but less prominent case, the aforementioned Daranee Charnchoengsilpakul alias "Da Torpedo" has won an appeal against the criminal court and her case has been declared a mistrial. She was imprisoned and convicted one and a half year ago for making anti-monarchy comments during a red shirt rally in 2008.

The reason for most recent turn of events was a petition filed by Daranee which argued that the absence of the public and cameras, as cited by the prosecutors on the basis of national security considering the contents that are being discussed, it would contravene with sections of the constitution that it should be an open trial. Since this petition has not been been forwarded by the criminal court to the constitutional court as requested and the prosecution went ahead and convicted her anyways, the appeal court pointed out this flaw and the trial has to start anew. Nevertheless and despite the conviction being annulled, Daranee has not been released and bail has been denied.

While both cases seem to be different, they both share the same problem with the draconian legal ramifications these two and many other people have been accused of. The fact that we cannot discuss what has actually been said and thus the extreme vagueness of the application of the law restricts an open discussion. This vagueness does not help to refute the impression that the lese majeste charges are being indiscriminately used to silence either inconvenient truths or political foes.