THAILAND CONTENT RESTRICTIONS IN EMERGENCY SITUATIONS

Unfortunately, at this juncture, the government overlooked the issue raised by public commentators regarding whether factual statements would also be considered illegal along with false statements, and simply empowered the Office of the NBTC to determine what constitutes illegal content

Over the past few months, the Thai government have had an arduous task in their attempt to restrict the spread of information during the latest wave of the COVID-19 pandemic, to the general disdain of the public at large. The problems arose in early July when the government announced the Regulation issued under Section 9 of the Royal Decree on Public Administration in Emergency Situations B.E 2548 (2005) (No. 27), which gave a very broad measure on prohibiting the dissemination of certain types of news.

In addition to the typical restrictions, we have all become accustomed to over the past 18 months, namely travel restrictions, lockdowns and curfews, the government deemed it necessary to restrict any news that may lead to confusion during emergency situations. The type of content under scrutiny involved that which may incite fear among the public or that which is intentionally distorted to cause misunderstanding that may affect the security of the state or the public's good morals. Falling foul of this regulation could result in a maximum fine of THB 40,000 or imprisonment of up to 2 years, or in some extreme cases, both.

In the initial announcement, there were not many specific details given other than those cited above and that the regulation is applicable to any form of media, whether online or offline. Whilst on the surface this regulation seemed to be a reasonable attempt to protect the citizens of Thailand and avoid any sort of moral panic relating to the pandemic, the possibility of the regulation applying to statements of fact as well as those that are false, certainly did raise some eyebrows to say the least. Furthermore, the content in question did not even have to be related to COVID-19, the only concern from the government was, rather ambiguously, whether the content caused misunderstanding during an emergency situation.

Towards the end of July, the Thai government issued a further regulation (No. 29) to authorize the Office of the National Broadcasting and Telecommunications Commission (NBTC) to inform all licensed Internet Service Providers (ISPs) of any content that violates the regulation and compel them to take certain steps to resolve the issue. The government stipulated three main obligations that ISPs must adhere to, specifically: check the IP address where the illegal content originated from; report the requested details to the Office of the NBTC; and suspend internet service to the corresponding IP address with immediate effect. Once the Office of the NBTC receives the relevant information from the ISP, the information must be handed over to the Royal Thai Police. If an ISP fails to fulfill any of the obligations set forth by the government, they run the risk of being deemed as non-compliant with the internet service license conditions and can subsequently face legal action from the Office of the NBTC.

Unfortunately, at this juncture, the government overlooked the issue raised by public commentators regarding whether factual statements would also be considered illegal along with false statements, and simply empowered the Office of the NBTC to determine what constitutes illegal content. The Office of the NBTC would then be able to instruct an ISP to block internet access to an IP address without a court order and the ISP would be obligated to comply without reviewing the content first.

Aside from the obvious rights and freedoms of individuals that enforcement of this regulation could potentially violate, it doesn't even appear to be feasible from a technical standpoint. As IP addresses can be dynamic, a different IP address can be assigned every few days, weeks or months when a new network connection is established, meaning that if an IP address is changed in between the content being disseminated and the Office of the NBTC taking action, an innocent party may be adversely affected. This issue also coincides with the fact that one IP address can be used by many different users and all would be punished for the actions of one individual, which could pose a troubling dilemma for the authorities when deciding whether to take action.

In light of the abovementioned issues, in early August, the Thai government was compelled by the Civil Court to issue yet another regulation (No. 31) to repeal regulation No. 29 on content restriction. The Civil Court ordered a preliminary injunction to temporarily prevent the Prime Minister from enforcing regulation No. 29 as the court endeavored to respond to allegations of the regulation being contrary to the Constitution. The court decided that the government's attempt to prohibit the dissemination of information negatively impacts the rights and freedoms of the people, and due to the broad nature of the language used leaving too much room for interpretation, greater specificity is needed before the regulation can be responsibly enacted.

The Civil Court also addressed one of the key concerns regarding the effect of suspending internet service to an IP address, by considering that those who do not have malicious intent when disseminating information may be deterred by the risk of punishment, which could prevent genuinely helpful information being passed on during emergency situations. Thus, the government canceled the regulation for the time being in adherence with the order from the Civil Court.

The balance of power between the Executive and Judicial Branches is vital for ensuring over-regulation does not occur, regardless of the initial intent behind the regulation. The intervention by the Civil Court to uphold the Constitution and protect the freedoms and rights of the people is a magnanimous decision and its effect on Thai citizens and democracy cannot be understated. If over-regulation occurs, particularly in emergency situations, it has the potential to cause people unease if they are unable to find out what is happening and could ultimately lead to civil unrest. With the protests that have occurred in Thailand over the past 18 months, this type of over-regulation would likely only add fuel to the fire, further highlighting the importance of the court's decision.