Overview

1To best explain how the Internet has been immensely cherished and quizzically restrained for its role as a new mass communication medium in Thailand during the past decade—and particularly during the 2006 political transition—I would like to establish the basis of my analysis by dividing this article into 4 parts.

2First, I will explore elemental concepts of communication in democratic society, which includes communication rights, freedom of expression, and public sphere. I will then map out legal provisions relevant to these concepts in order to elaborate the significance of these notions as robust fundamentals and faithful driving forces of democratic society. Second, the article will describe how the Internet has evolved from a communication and information-sharing channel in the highly-educated circle to become the general public’s new gateway of the one-to-many-communication mode, the trend which later contributes to a flourished, yet overgrown, marketplace of ideas with several forms of user-generated content production on display. This part of the article will attempt to link the variety of mass communications thanks to the digital revolution, seeing in which ways they ensue communication rights and freedom of expression, hence, forming a healthy public sphere and stimulating a democratic culture.

3In the third section, the article will point to cases where communication on the Net has been marred by the State’s influence or legitimate constraints, and therefore, inflicting upon the rights to communicate and freedom of expression and consequently stirring the online public sphere. Finally, the article will offer suggestion in easing the fiery tension between freedom of expression and censorship, in hopes that the Internet will be effectively used to reinforce democracy rather than to diminish it.

Part I: Communication Rights and Freedom of Expression

4“Article 19,” an independent human rights organization, whose aims are to protect and promote the right to freedom of expression worldwide, proclaims that freedom of expression is a key to human rights as it underlines democracy. The view is shared by the UN Human Rights Committee, who sees the right as “paramount importance” in any democratic society (Article 19, 2007:2). The recognized significance of freedom of expression is clearly certified in Article 19 of the Universal Declaration on Human Rights (UDHR):

5Everyone has the right to freedom of opinion and expression; this right includes the right to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

6Although the resolution does not directly obligate the member states to comply, parts of it, including Article 19, are deemed to have legal implication as customary international law since 1948 when it became in active.

7Nevertheless, the International Covenant on Civil and Political Rights (ICCPR), which has been ratified by more than 150 States since 1966, including Thailand in 1997, does have a legal obligations for the endorsed nations to abide by its provisions. At the same time, the ICCPR also includes many rights in the UDHR, especially in its Article 19, which, similar to those appeared in its predecessor accord, guarantees freedom of expression. Further, it even specifies that:

8Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art or through any other media of his choice.

9While freedom of expression has been constitutionally guaranteed in most democratic societies, although the practices seem to be another case, communication rights remain far from being achieved in many nations as the concept covers a wider scope of prerogatives. The concepts of communication right and freedom of expression are not exactly interchangeable; they are essentially intertwined as communication rights cannot stand firmly and perform effectively without the existence of freedom of expression, which is among its four key pillars.

10However, in the real world where complexity of societal hierarchy encompasses, the rights to communicate of each person or segment may not be identical, because often times they are manipulated by the State, economic forces, the media, and other influential factors.

11The debate of communication rights surfaced during the past few decades as the world has become propelled by globalization trends of politics, economics, and culture, all in a cross-border context (Ramasoota, 2007). Many sectors have raised concerns over the shortage of content, genre, and cultural diversity representing in media due to the rise of cross-media business acquirement, and concentration of media ownership, as well as from the dominating tendency of consumerism which treat audience as customers of products, not as citizens.

12Additionally, the emergence of Information and Communication Technology (ICTs), their facilitating infrastructure, and the considerable impact they have made in people’s life, have been swayed by the Liberalism States from fulfilling public interest and bridging the gap between the haves and the have-nots to serve business purposes and to aim for optimum profit.

13All these phenomena reflect the State’s mentality, that communication rights do not deserve its full attention and earnest development. As a result, it is apparent that an informed and mature citizenry cannot be constituted when communication rights are not fully alive and functioning, legal-or practical-wise, while freedom of expression, despite being lawfully endorsed, only falls in the grasp of the power-that-be, not general public’s.

14Among the spearhead campaigns for communication rights were the UNESCO’s New World Information and Communication Order in the 1970s and 1980s, and the World Summit of Information Society which followed in the early 2000s. During these years, the so-called “Third-World” nations struggle to fight for an equal access and utilization of media in order to form a balanced flow of information, seeing how they become dominated by the developed world’s political, financial, and cultural influences. Ramasoota (2007) points out that, in order to achieve the goal, democratization of media and communication is pivotal. A “free” communication process does not only rest with the rights to disseminate information, but also go full circle with the rights to to form a fruitful conversation; that is to understand the message, to response, and to receive feedback. Therefore, the public sector nowadays takes more active roles in the move for communication rights, as opposed to being passive observers in the past years.

15In 2003, a transnational working group called the Communication Rights in the Information Society (CRIS) conducted a worldwide campaign to assess communication rights in countries of various backgrounds. Following their extensive study, the group came up with the Four Pillars of communication rights, which were used as assessment framework and entail the degrees of rights in each surveyed country (CRIS, 2005). Each of the four pillars are defined and supported by international law and agreement.

16 1- Communicating in the Public Sphere, which concerns the existence of spaces and resources for the public or anyone to engage in transparent, informed, and sustained democratic debate. Peter Dahlgren (1995)1 points out that the state of democracy in the turn of the millennium has a close correlation with the health of systems of communication, hence, inevitably involves mass media, though not focusing on media alone. Jurgen Habermas (1989)2. who invented the public sphere concept explains that nowadays, the discursive and institutional “space” where people can openly converse and debate rest in media structures and practices. Nonetheless, he admitted that if the media obediently comply with the State’s excessive authority or corporate forces, the public sphere may be weakened, and subsequently lead to a wavering democratic society.

17This pillar includes the access to knowledge of public interest, as well as its collection, processing and manipulation relating matter of public concerns, along with information dissemination. The examples of rights and laws relating to this pillar are:

• Freedom of expression, including freedom of speech and freedom of the press: UDHR 18, 19, 21; ICCPR 19; Thailand’s Constitution3 (1997) 39–41; (2007 Draft) 45-47
• Access information from public and private sources concerning public interest: UDHR 19; ICCPR 19; Thailand’s Constitution (1997) 58–61; (2007 Draft) 55-61

18 2- Communicating Knowledge for Creativity and Equity, which involves the exchange and circulation of knowledge to a wide range of receivers. In this sense, “knowledge” does not necessarily mean recognized theories, but it also covers creative information that is vital to public debate and democratic interaction. This pillar also desire for a “decentralized structure” of production and communication of knowledge, with information initiated and distributed by and among different groups of people. As a result, this pillar cautions the use of “copy right” to curb the knowledge communication cycle, and instead, to capitalize the profits of “knowledge products” by placing them in the hands of a few some. An example of right and laws that are related to this pillar and the use of ICTs in communication is:

19Affordable and equitable access to the means and media for knowledge-sharing: UDHR 19, 27; ICCPR 19, 27; Thailand’s Constitution (1997) 40, 78; (2007 Draft) 47, 77/8

20 3- Civil Rights in Communication, which revolves around the implementation of civil rights in regards to the communication processes in society. While the first pillar ensures freedom to exercise a citizen’s right, this section protect one’s dignity by equipping a person with the rights to defend his/her reputation and maintain his/her personal domain. At the same time, it serves also as a circle where people can preserve their privacy and be free from surveillance. The examples of rights and laws that are relevant to this pillar are:

• Protection of one’s honor and reputation, privacy and personal data: ICCPR 17, 19.3; Thailand’s Constitution (1997) 28, 34; (2007 Draft) 28, 35
• Privacy of personal communication: ICCPR 17, Thailand’s Constitution (1997) 37; (2007 Draft) 36

21 4- Cultural Rights in Communication, which encourages the communication of diverse cultures, cultural forms and identities at the individual and social levels. This pillar is based on ground that every culture should be respected, preserved, and renewed. With this pillar, people of minority linguistic groups, such as non-central dialect, or marginal tribes in multi-ethnic countries, are empowered with the rights to speak out and be heard. An example of rights and laws that are related to this pillar is:

22Support for balanced sharing of all cultures and identities, promoting understanding and tolerance: UDHR 22, 27; Thailand’s Constitution (1997) 30; (2007 Draft) 30

23CRIS also proposes that to complete the communication rights assessment, the four pillars must be sturdily supported by two additionally grounds;

1. International Dimension of Communication Rights, which account for cross-border media and communication, and international agreements.
2. Democracy and Participation in Communication Governance, which means civil society must carry out an effective participation, domestically and internationally.

24Ramasoota (2007) explains that, communication rights, when implemented effectively, will not only overcome hurdles caused by misapprehension, prejudices, and hatred among a diversed group of people with various cultural backgrounds and beliefs based on gender, race, and religion, but also bring about fruitful and creative collboration and decision-making processes stemmed from informed perceptions. At the same time, communication rights prevent the state or financial forces from taking advantage of citizens, while forming a solid foundation of social control on freedom of expression. In essence, communication rights empower both individuals and each segment of society with autonomous authority to have their voices heard without being taken for granted, which can eventually lead to the increased participation in the administration at any levels.

Part II: Cyberspace: An Enrichment of Marketplace of Ideas or A Myth of Virtual Freedom?

25Since the Internet was introduced the world and later to the Thai community in the late 1970s, people’s life is becoming inevitably dependant on its facilitation, minimally or entirely, from the infant forms of online communication to the sophisticated versions of cyber assistance. Similar to many countries where the ICT infrastructure is reliable, most of the time, and the associated tools are available and affordable for a substantial amount of public, Thailand sees groups of net users continually spring up at a speedy pace, using this virtual channel to serve their varied purposes in communication

26Kaewthep (1998)4 explains that the Internet is a public medium, where users can play the role of sender and/or receiver. The exchangeable role enhances equality in the communication process by reducing authority of senders and facilitating receivers with power to respond. As a result, communicating on cyberspace will decentralize the monopoly of information sources held by people with domineering forces in politics, economy, or dominant culture and assist a free and balanced flow of information and eliminate any unfair and unequal communication process where every citizen is able to freely access to information source, voice his/her opinions, and be heard.

27From this phenomenon, communication professionals and academics see new media, particularly internet as a new alternative for public communication (Chartprasert et. al, 2003)5. It technological characteristics facilitates communication to be lateral, two-way, and interactive. Such unique traits prevails the time and geographical constraints, and at the same time, wrench the flow of information in ways that actors in communication process want it to be.

28In line with Habermas’ caution on the erosion of public sphere, Kaewthep (1998) and Schiller (2002)6 forewarn that market and financial forces may manipulate information flow online and turn it into information commodity. With advertisement being a strong drive in this playing field, information or web sites that are most sought after will be best-seller products attracting user hits, hence, generating ads revenue, while net users are assigned to be passive consumers who are simply clicking.

29Here, I would like to underline cases where the Internet is used as a medium to stimulate a burgeoning public sphere and a forum where people enjoy their communication rights in different aspects.

1 - Blogs: Free Flow of Information & Marketplace of Abundant Ideas

30It is undeniable that the development of free web-based publishing software has propelled an Internet phenomenon of the 2000s, Web Logs or Blogs. Although Thai netizens have been practiced online diary since the late 1990s (Khaoto, 2004), but the notion of blog entered local net community in an opportune time, when the content of online entries started to branch out from personal encounters of events and/or opinions toward current issues, merely based on the writer’s emotions and impression, to informative accounts of incidents, combined between an individual’s feelings and knowledge, tangible facts, or commentaries of various issues ranging from politics, economics, and education, to arts-related topics such as film, music, and books, and personal hobbies. Khaoto further explained that online diarists have an authority in setting the agenda of their own website; therefore, they are able to choose topics or stories that are deemed interesting, useful, or beneficial to share with others. As a result, online diaries, and subsequently, blogs, have evolved from an emotional outlet of the writers to a cyber forum for disseminating information to readers.

31The rising demand of general public to form a blog was answered by several hosting sites. In December 2004, popular web board www.pantip.com launched www.bloggang.com, a free blog hosting service website, offering an unlimited space for Thai-aspiring bloggers who do not possess the technical knowledge of web-making, and it became one of the largest blog hubs in Thailand, with more than 242,000 blogs (as of April 2007). Subsequently, more than 10 new free blog and online diary hosting websites have introduced themselves to the net community, including young student-turned-business start-ups and a multimedia corporation.

32Through blogs, netizens are empowered to exercise their communication rights at will. Many publicly unknown individuals have made their name from blogging, from young blood academics to independent writers and aspiring critics. Certain bloggers are becoming household names when it comes to the matters of their expertise, for example, Sarinee Achavanuntakul of www.fringer.org for her sharp analysis and knowledge on significant world and Internet issues, or Kanchart Rangseekansong whose http://merveillesxx.bloggang.com offers an unusual and uncompromised take on independent films.7 Although being born in the blogosphere, their words are now taken out to a wider group of audience with publications, a traditional medium.

33Suffice to say that, blogosphere has transformed the media ecosystem. Not only does it breaks away from the one-to-many mode of communication in which traditional media perform, but also surpass the level of being an interactive medium that provide the one-to-many and many-to-many communication channels the way mainstream media use it. Now, blogs grow the culture of “Social Media”, a healthy infrastructure for active participants who share similar interests and together cultivate trusted communities online (Bowman and Willis, 2005).

2 - Citizen Journalism

34When the merits of digital technology and mobile devices converged, national media outlets have grabbed this opportunity to enhance their content production, not by merely acquiring new technology, but by integrating audience’s instant contribution with their coverage, forming a collaborative newsgathering effort with the audience. People at the receiver end are urged to provide their eyewitness account of an event as it unfolds by sending multi-media messages to media companies. The classic unprecedented success of public participation in reporting stories is evident in the BBC’s coverage of the 2005 London bombings, where an influx of texts, video and audio clips were sent via mobile phones and emails to the network, enabling it to provide an extensive coverage with exclusive footages.

35The state of blogosphere in Thailand is still infancy, comparing with their counterparts overseas where the concept of web-based citizen journalism has been widely discussed and debated a few years earlier. In the United States, the strengthening power of blogs is stemmed from the active, lively, and creative dialogues and information dissemination on cyberspace, prompting a culture of information sharing and later propelling for actions outside the irtual world. Mainstream media cannot ignore these newcomers in the playing field, because apart from being sidekick in newsgathering, bloggers also demand greater transparency in reporting from mass media, using their united forces and high speed technology to perform a serious fact-checking and watchdogging function. Their success stories, such as the infamous Rathergate/Memogate case where the harsh criticism and movement from the blog community eventually forced one of the most revered newsman of America’s national television network to resign, or the operation of South Korea’s OhMyNews.com, have built a strong case of how the public are yearning for accurate and quality reports, and not afraid to compete with media Goliath if their wish is not granted.

36Contrary to certain arguments which prevent amateur or aspiring reporters from taking part in conventional newsgathering and reporting, Michael Skoler (2005) of the Minnesota Public Radio’s news department says working with audience, in fact, invigorate journalism. Based on his experience earned by hosting the Public Insight Journalism ® project, Skoler says the newsroom has added diversity of expertise to its workplace more effective than hiring. It is reporting from bottom up, and this prompts news professionals to listen, collaborate, and learn from the knowledge rest in the audience, even if it means to hand them a pen, microphone, or a web space.

37Although such extreme cases has yet to present itself in Thailand, but the Thai media companies are not shrugging the idea of letting laymen into their newsroom. The concept of “Citizen Journalism” or “Participatory Journalism” extends to varied degrees, depending on each operation’s definition. Essentially, with technology convergence at hands and users becoming content generators, mainstream media incorporate these factors in their operation and use it to their advantages.

38One notable incident that may best illustrate Thai netizens’ attentiveness to seeking and disseminating information occurred during the night of September 19, 2006 as the coup d’état to oust former Prime Minister Thaksin Shinawatra unfolded. While all national broadcasters were seized and barred from reporting what happened and print media were unable to beat their limitations, cyberspace was a viable source of information where an influx of people turned to. Some even sneaked out, took photographs of military tanks roaming city streets, and posted on the Net.8

39A more systematic case was the “Cyber Journalist Workshop”, organized by the Thai Rath, partnered with popular web portal Kapook.com daily early 2007, journalism students were trained by professionals, and asked to report stories around their campus to the newspaper’s online edition as their exercises. These students might not be considered an inexperienced amateur, but their contribution has fulfilled what the daily lacks. At the same time, the chance allowed them to have a say via a national media outlet.9

40The birth of OKNation.net, a free blog hosting site under the wings of the Nation Multimedia Group, has signified a warm welcome of citizens into the newsroom’s corner office. Unlike the Thai Rath’s online forum for young reporters where a team of editors screened and revised the original contents, bloggers in the OK Nation family self-operate their own online space, serving as an editor of their online channel. They are free to post any kind of content entry, in any form of story-telling, without editorial discretion which are strictly adhered to and applied in mainstream media operation. It is apparent that not every blogger is citizen journalist. However, they do want to contribute in their own small and meaningful ways, such as sharing with others about their passion or expertise. With virtually unlimited power to distribute information in their grasps, many bloggers take a step further than sharing their trivial comments and roam their neighborhood for stories that matter to their heart. Among prominent online writers who apply “citizen journalism” practice on their blog is “PEN”, a Chiang Mai-based blogger who constantly provide readers with texts and video clips of what deemed significant incidents in his town, for example, a series of photos depicting air pollution in the city10; the story that periodically made headlines in mainstream media. In addition, Nation Multimedia journalists also have a chance to directly and sincerely converse with their followers, using their personal blog instead of going through their usual platform.

41Within the blogosphere, the first pillar of communication rights is fully exercised; be it in the form of information and knowledge sharing or citizen journalism, with a dab in the second and forth pillars, where knowledge is unlimitedly disseminated, and, sometimes freed from copy right obligations. People can freely state what is on their mind in various forms of story-telling, including the liberal promotion of their cultural identities. The blog contents are far more diversed than those appeared on traditional media, and information can be easily accessed regardless geographical restraints. Nonetheless, the rigorous deployment of Civil Rights in Communication has yet to be taken seriously by the net community, but is rather discussed in the recently-approved computer-related offences bill, which will be detailed later in this article.

3 - Alternative Media and Civic Journalism

42As Jan Schaffer (2005) of the Institute for Interactive Journalism at the University of Maryland rightly puts, citizen journalism mainly seeks to engage the public in the media, empowering them with tools to communicate. Civic journalism goes beyond that goal by, apart from equipping them with communication rights, provoking citizens to participate in civic life. While commercial media’s fundamentals force practitioners to see audience as consumers, and therefore, come up with best strategies to “sell” their information commodity, civic media view audience as a citizen who needs to be armed with a substantial amount and a wide array of accurate, constructive and creative information. In this case, information is not merely a product to be sold, but a life necessity so that people can later use to make a sound decision. Although civic and citizen journalism are not synonymous, Schaffer said they can be symbiotic, and fuel one another.

43Often being dubbed as “alternative media”, a handful of websites that uphold a goal to provide public what they need to know, not just what they want to know, emerge on cyberspace and enlighten net users with news and information that rarely steal printing space or airtime on mainstream media or even a short course in conventional education system. During the past recent years, audience has seen a wide range of civic media; some manage to stand the test of time and financial restraints, some do not.

44Among the spearheading civic media are those operated by nonprofit organizations who want to shed some lights on their areas of work to create better understanding among the public, and sometimes with fundraising or volunteer-seeking potentials; a form of new social movement on cyberspace. Seeing the Internet as an economical investment for a communication channel, these agencies learn to catch up with technology and utilize it to best serve their needs. The examples of civic media site that have become a reference source for works in social fields are www.bannok.com and www.thaingo.org. Some websites offer free online knowledge database with a vast assortment of information, ranging from politics and economics to arts and culture, and even override the limitation of copy rights. Such are the cases of Midnight University (www.midnightuniv.org) and online encyclopedia project, Wikipedia (th. wikipedia. org).

45Even among the press community, cyberspace seems to be a safe haven for them to report the version of facts that is unedited or unfiltered by corporate policies. Prachatham news agency (www.newspnn.com) and Prachatai (www.prachatai.com) online newspaper are testaments of press-initiated civic journalism, adhering to echo voices that are rarely unheard in commercial media and to answer the need for non-mainstream contents. The Issara News Institute (www.tjanews.org) and its sister site Intellectual Deep South Watch (www.deepsouthwatch.org), both supported by journalism professional organizations, illustrate the wish of mainstream journalists who want to break away from commercially-driven practices and pursue another form of newsgathering and reporting that advocate for peace rather than inflicting it.

III. Regulation and Censorship on the Internet

46Despite the glorious picture of the Internet as a knight in a shining armor coming to save and sustain democracy painted above, the cyber savior can in fact draw its sword and stab citizenry in the back, if people are not aware of what kinds of influence it may bring. The Information Society may become mayhem with frivolous comments or groundless claims are flash-flooding all over cyberspace, especially in critical times. The medium’s nature and its double-sided-sword consequences make it a true challenge on how to balance between freedom of expression and censorship.

1 - MICT’s blocking access to websites

47Internet censorship by means of blocking access to websites is not a new concept to the Thai community, because even before the administration under the shadow of the Council for National Security (CNS) assumed office in late 2006, the practice was already alive and functioning during the reign of former Prime Minister Thaksin Shinawatra.

48Ramasoota (2007:157-158) raises the case where two websites, obviously presenting political messages that mostly opposing the then premier were blocked by the “cyber-inspector” in 2005. The Information and Communication Technology Ministry (MICT) stated the reasons for closing down these 2 sites that they had no evidence of the real owner’s identity and they presented violent content that could prompt social disorder. Empowered by organic laws, the MICT’s objective is to eliminate inappropriate content from the internet, but the ministry has not presented a clear definition of what are considered “inappropriate” to the public. Naturally, pornographic websites and those with explicit violent contents are among the first target. But in political turbulence, websites of any kind that carry political contents could easily become a culprit for provoking social order or threatening national security

49Regardless of the administrative change, current authority and the MICT still faithfully hold on to the legacy intention in compromising communication rights to maintain power. On September 20, 2006, the group formerly known as the Council for Democratic Reform under Constitutional Monarchy (CDRM) issued the martial law No. 5/2549, permitting the MICT to “suppress, ban, and destroy” the circulation of any form of messages via any type of communication networks that are deemed a threat to the reform. The mandate placed strict cautions on website operation, particularly of online forums where people generally post their opinions at will. Popular web board pantip. com temporarily discontinued its politics-discussion board, the Rajdamnern Room, while the Thai version of online user-generated encyclopedia Wikipedia posted a warning to inform its members of the martial law. The web also asked visitors to help monitor traffic by being extra cautious when editing an article and by immediately removing any remarks that might be considered “inappropriate”, in line with the directive.11

50Ten days after the coup, users of local Internet services were unable to reach Midnight University’s website that compiles some thousands academic articles, available to the public free of charge. The webmaster suspected the 2-day ban of the web came after the civic group made a statement opposing the coup and tore the temporary constitution implemented by the CDRM, which might be deemed a bold, harsh action. The case was later brought to the Administrative Court, who ruled in favor of the web and demanded the MICT to lift the ban.

51The Midnight University case demonstrates the first step of Internet censorship carried out by the MICT under the new administration. Noticing a staggering rise in blocklist, from 2,475 sites in October 2006, to 10,885 as of March 12, 2007, Freedom Against Censorship Thailand (FACT) requested the ministry’s transparent and public announcement of the list of blocked websites, including the reasons for them being blocked. The Ministry, however, only explained the legal basis of these censors was martial law to curtail contents which are threats to national security and law enforcement.12 According to FACT, among the frequently-blocked sites are those presenting pro-Thaksin or antimilitary administration contents, such as www.hi-thaksin.net, www.19sep.org, and www.saturdayvoice.com.Additionally, international news and video-file sharing websites such as CNN.com and YouTube were temporarily blocked in January 2007 after the video clips of Thaksin’s interview with CNN were posted.

52The recent case which stirred quite a commotion among net community was the indefinite ban of YouTube in early April 2007 on the ground of lese majeste for posting video clips with an offensive content to the Thai monarch. The case was prolonged for more than a month, with the MICT threatened to take legal action against Google as the owner of YouTube, although at its base in Thailand, for refusing to take down the clips that insult the country’s much-revered king. The popular video-sharing site backed down at last after being adamant in sustaining the clips in question for the sake of free speech, complying with the Thai authority’s request to remove the controversial entries.

53The YouTube debacle has spawned intense debates on how far freedom of expression can be compromised, especially when it comes to ultra sensitive issues like the monarchy. Even the Nation, a daily known for being a staunch crusader for freedom of the press, publicly backed the MICT’s asking You Tube to take down the offensive clips.13 Some critics see the ministry’s web-blocking exercises as a useless effort, explaining that technically, cyberspace cannot be blocked as advanced technology and skilled net users can always find their way around the barriers.

2 - The Computer-related Crime Act B. E. 2550 (2007): Double-locked handcuffs for Net users?

54The question now is, if legitimate blocking does not effectively stop people from disseminating and accessing information believed to be “inappropriate” to the Thai social context, then what will freeze their action?

55Introducing the Computer-related Crime Act, recently approved in the third reading by the National Legislative Assembly, and is on its way to the Royal Gazette. While the key intention of this bill aims to prevent, curtail, and punish exploitation of computer and the Internet, scholars and media practitioners envision the new regulation and organic laws will tremendously influenced the fate of net community.

56London-based freedom of expression campaigning agency “Article 19” examined the drafted law, based on its February 2007 revision, which was not the finalized and approved version, and raised concerns over the following points14:

57 a. The law’s definition to prohibit the access of information over computer system is too vague and overlaps with existing criminal laws, for example;

58Section 15, which forbids the alteration of a third party’s picture in a way likely to harm that third-party’s reputation, is repetitive with civil and criminal defamation provisions, hence, could be entirely scrapped since there are ample existing legal implications.

59 b. The excessive penalties where convicts may face both long-term imprisonment and a considerable amount of fine conflicts with Article 9 of ICCPR, which protects the right to liberty and requires any deprivation of liberty to be proportionate. More importantly, as noted by the European Court of Human Rights, excessive sanctions exert an unacceptable chilling effect on freedom of expression.

60 c. Based on this act, “Competent Officials” are empowered with an extremely broad authority and swift independence in the surveillance and access to communications systems, which also generates a chilling effect on free expression on cyberspace.

61Although the argument is partially overruled as the passed version compels officials to seek court order prior to their action and the seizure or suppression must end in 60 days. Nevertheless, officials may operate without court orders by using actions that are currently being done through a “request for cooperation”, which have no legal obligations. Under this law, the following actions are legitimate and must be abided by:

• Section 16/1: Instruct a person who is suspected to have involvement in the offense to testify, in person or via letter, document, data or other type of evidence that can be comprehensible.
• Section 16/2: Instruct service providers of any computer-system-mediated communication or relevant parties to give traffic data to officials
• Section 16/3: Instruct service providers to give officials data concerning service users which is compulsory by Section 24, or data under the possession or control of the service providers

62 d. The law extends liability to service providers, as stated in Section 14, which may effectively require them to self-censorship to avoid being prosecuted.

63Prior to the computer-related offences draft being approved, Dome Charoenyost, Chief Technical Officer of a web hosting company, expressed concerns about the government’s mentality and methods in cracking down on debatable issues on the Internet. He shared with a forum on Internet freedom that, in monitoring web content, the government’s screening team is developing a software robot that can scan online discussion forums and websites for names of controversial public figures or issues. The robot would then report the IP address of any person who posts a comment using these terms. If this is true, he said, Thailand “is on verge of becoming a surveillance society”.15 And it seems that with the help of this law, the fear may come true.

64Contrary to the speedy success in the approval of Computer-related Crime bill, many questioned the pending Personal Data Protection draft whose key element is to support the Third Pillar of Communication Rights, and theoretically, should be passed prior to the cyber crime law.

IV. Working toward a Democratic Future of the Thai cyber sphere

65Regulating the Internet remains a tremendous challenge due to its constantly-evolving nature and a snowballing number of relevant parties; be it users, mass media, service providers, regulators, the State, and even third parties. In a comprehensive study conducted by Pirongrong Ramasoota and Nithima Kananithinan (2004), the researchers suggest the regulatory mechanism for the Internet that will be most effective and yield an efficient result in a long run is to cultivate “a culture of mutual responsibility in Internet Regulation”, which comprises the 5 following segments:

• Internet Industry: People in the industry, from service providers, professional organizations, to users, should adopt the Codes of Conduct, adhering to social responsibility that comes alongside freedom of expression as well as answering to the needs of each societal sector. The policy will reflect net community’s stance. Like the direction in which the Thai Webmaster Association is embarking upon, self-regulatory bodies should be set up and play a key role in promoting the Codes of Conduct and monitoring any wrongful acts to ensure transparency.
• In the context of blogosphere, some avid bloggers started to come up with proper “netiquettes” or Bloggers’ Codes of Conduct16, as widely campaigned in the US blog community. At the same time, mainstream media who oversee the blogging operation are providing journalistic training for bloggers who pursue a citizen journalist role, hoping they will acquire professional skills to facilitate their works as well as support journalistic principles; accuracy, objectivity, impartiality, and fairness.
• Self-rating & Filtering: A rating system should be created by public consensus and widely implemented. Internet Content Providers (ICPs) should be encouraged in a volunteer effort to use the system on their web, as opposed to being compelled by law. At the same time, Internet Service Providers (ISPs) should facilitate users by providing filtering tools that suit their needs.
• Law Enforcement: It is undeniable that legal obligations are necessary to safeguard social order and people’s rights. Nevertheless, laws and regulations in regards to the Internet should take into account other self-regulating factors, so that the restriction will yield an optimum result in ensuring communication rights and divert from legal bindings.
• Hotline: This function provides information of illegal and harmful contents and receives complaints from related parties concerning Internet exploitation. This will ensure that the public is equipped with necessary knowledge and actively participate in the monitoring process.
• Media Literacy: The concept is the heart of the operation, because with realizing the impact of media on a person’s life or on the society, one may not comprehend of the significance of communication rights on the Internet and why archaic forms of censorship will threaten democracy. Vigorous campaigns on how to exert communication rights on cyberspace, knowledge on Internet Codes of Conduct and how to file complaints or lawsuits of Internet misuse are necessary to achieve this goal.

66Though the proposal seems to be a supreme archetype, but it is not impossible to achieve. Admitting that the mechanism can not be constructed and fully functioning overnight, the researchers are optimistic that this will be a long-term learning system, with the state playing a key role in facilitating and fostering the educated environment and providing equal access to the Internet for every citizen. Nonetheless, if any party fails to do their part, orthodox methods such as blocking and censoring will re-surface, leading to the eroding mechanism, hence, fading democratic society.