The Computer Crime Act B.E. 2550 (“Act”) imposes criminal offences under Section 14 that whoever, for example, (1) inputs into a computer system any obscene data which is accessible to the public; (2) inputs into a computer system any data in violation of national security according to the Criminal Code; or (3) inputs into computer system false data in a manner likely to cause injury to national security, another person or the public, shall be punished with imprisonment not exceeding 5 years and a fine not exceeding 100,000 Baht, or both.
In addition, Section 15 of the Act provides that any service provider giving others access to the computer system (internet) (“Service Provider”) who intentionally supports or consents to a user to commit any of the aforementioned offences in the computer system under his control shall receive the same punishment as prescribed for the offender under Section 14. To consent means (1) to explicitly consent and (2) to implicitly consent.
Moreover, according to the ministerial notification B.E. 2550, a Service Provider is duty-bound to keep traffic data as crucial evidence in a criminal case and the investigation process, in order to trace the offender.
Section 15 of this Act has brought about 2 main observations as follows.
Intentional support or explicit consent can undoubtedly establish a criminal offense; however, it still needs to be considered whether it is fair to impose punishment on a Service Provider when consent is implied.
An implied consent can be expressed by (1) letting the public freely give comments on any given topic posted by the Service Provider, or (2) allowing them to communicate to one another in the Service Provider’s web board(s). Should there be any kind of illicit data which exists within a reasonable period of time, the Service Provider is deemed to give an implied consent to such criminal act.
In an undecided case, a director of an online newspaper (Service Provider) was punished with 8-months imprisonment and a 20,000-Baht fine; however, the court provided a one-year suspension of imprisonment because the offender had never before been imprisoned and it was righteous to give the offender an opportunity to reform her behavior. The court was convinced that the Service Provider implicitly consented to allowing the offending data posted on her website for 20 days, which exceeded the legitimate time limit described by the court.
Even though the court admitted the existence of freedom of speech as a fundamental right of the people under the Constitution of the Kingdom of Thailand, the court reasoned that the offender (Service Provider) anyhow had given access for others to violate national security and others’ freedom which shall, vice versa, be respected.
It is the responsibility of a Service Provider to supervise heavily visited sites (up to 10,000 visitors/ hour). Would it be possible for them to inspect all activity happening on their websites? Is it imprudent to impose such criminal burden upon them.
The court’s decision has alerted international organizations to make official statements on such decision, and to reveal their concerns that such provision of law would generate a cloud of fear in the society and put people’s liberty in restraint.