Prayut Chan-o-cha, Prime Minister of Thailand
The right to privacy and online speech
The repression of freedom of expression online in turn raises many questions about privacy. In Thailand the process of identifying individuals who post what is deemed illegal content online has led to citizens’ personal online space being invaded and they risk their private thoughts and opinions being denounced to authorities.
Social media sites are not entirely public spaces. In some countries, citizens have some rights to privacy in the public space but those rights cannot be easily transferred to social media. In a public, physical space, a police officer in many jurisdictions could only follow one person at a time and for a limited amount of time; the person could also potentially realise they are being followed. On social media, a police officer could access potentially thousands of accounts at the same time using social media monitoring technologies that scrape data from user content and profiles, and perform automatic analysis on them.
Regardless of privacy settings, most social media users are communicating with a network, albeit sometimes a very large one, rather than it being a fully ‘public broadcast’, where they assume that anyone and everyone can access it. As such, people who are under no suspicion of any crime should have a reasonable expectation that their social media activity is not routinely watched and controlled by state actors.
To that extent, even if the content is publically available, social media is a partially private space that should require a form of legal authorisation – that specifies the nature of the mission for which access to social media will be needed and the duration of the authorisation – for the police to investigate. When the Thai police phishes users’ data or relies on a network of informants, it is invading the privacy of social media users.
Article 35 of the previous Constitution of Thailand included the right to privacy as a human right [B.E. 2550 (2007) Constitution Article 35: “A person’s family rights, dignity, reputation or the right of privacy shall be protected. The assertion or circulation of a statement or picture in any manner whatsoever to the public, which violates or affects a person’s family rights, dignity, reputation or the right of privacy, shall not be made except for the case which is beneficial to the public”]. Following the May 2014 military coup, all but a few provisions of the 2007 Constitution were suspended. An interim Constitution was promulgated on 22 July 2014. The Interim Constitution does not explicitly uphold the right to privacy and the only provision on the protection and promotion of fundamental rights and freedoms reads: “subject to the provisions of this Constitution, all human dignity, rights, liberties and equality of the people protected by the constitutional convention under a democratic regime of government with the King as the Head of State, and by international obligations bound by Thailand, shall be protected and upheld by this Constitution.”
A new constitution was voted on 7th August 2016 that specifically upholds the right to privacy.
Yet the three cases below reflect the Thai police’s investigation tactics and the impact the subsequent arrests have on Thai citizens’ right to privacy.
Pongsak Sriboonpeng is a 48-year-old former tour operator. In his interviews he claims he became sensitized to poverty and inequality in Thailand during his extensive travels throughout Europe. Under the pseudonym “Sam Parr” that he used on Facebook, Pongsak became increasingly involved in politics, writing blog posts on Thai political history and taking part in red-shirt political rallies. Upon his return to Thailand, Pongsak was required to take care of his elderly mother. Socially isolated, he would spend his free time online meeting new people who shared his views [Pongsak also claimed alcohol led him to post content he would not have otherwise posted]. In June 2014, one month after the coup, Pongsak featured on a list of 17 people summoned by the government. He failed to appear for questioning.
But the police caught up with Pongsak. One of his new online ‘friends’ invited him to visit him in his home town in December 2014. Pongsak had been speaking to him for four or five months and the person had even sent him a mobile phone as a gift. As Pongsak took the bus to visit his friend, the latter frequently messaged him to check on his location. When the bus arrived Pongsak was greeted by police officers and soldiers who boarded the bus to bring him to a military base where he was detained. His ‘friend’ turned out to be one of the officers who interrogated him. He reportedly asked Pongsak: “Don’t you remember me?”
Pongsak was tried for offences related to six Facebook posts. Four of them were posted in September 2013, before the coup. Two of them were from November 2014. The content of the posts could not be reported since the military trial took place in camera, as the content was deemed too offensive to be disclosed. The posts involved a picture of the King’s sculpture, a photo montage and a picture of a banner.
Yet, Reuters reported that the postings included neither threats of violence toward the King or the royal family, nor appeals to abolish the monarchy. Pongsak was judged in a military court, and despite a plea for leniency for health reasons, he was sentenced to 60 years in jail –10 years for each post. His sentence was eventually reduced to 30 years following his guilty plea.
‘Akaradej’ [His name is not disclosed for privacy reasons] was a student at Mahanakorn University of Technology. On Facebook he used the pseudonym “Uncle Dom also loves the King.” In March 2014, one of his Facebook friends, who disagreed with his political views, denounced him to the police for a comment Akaradej had made on a status he had posted. In June 2014, a month after the coup, ten police officers arrested him at his university dormitory and confiscated his electronic devices. Akaradej was denied bail and spent five months in detention before being tried in November 2014. A criminal court condemned him to five years in jail, which was reduced to two and a half years.
In September 2014, nine members of an ultra-royalist group in Chiang Mai province led by Krit Yiammethakorn filed a complaint to the local police against a Facebook user named Rungnapha Khamwichai, who they claimed had posted seven messages deemed to be lèse-majesté. The group had been informed that the user was based in Chiang Mai. The police identified the person behind the account Rungnapha Khamwichai as Sasivimol (also spelled Sasiwimol), a 29-year-old bar tender who worked in a hotel in Chiang Mai and the single mother of two girls.
Sasivimol claimed she had never engaged in any political activity. When plainclothes officers came to her house in September 2014 and confiscated her computer and mobile phone for inspection she told them she was not the author of the messages that they found. According to iLaw, a Thai non-profit organisation fighting for legislative change, she was then told it was not a serious case and that she would be let go if she confessed. Sasivimol claims she was not aware of Article 112 – the law banning lèse-majesté – and did not have access to a lawyer. She decided to do as she was told and confessed to having authored the lèse-majesté posts.
On February 2015, she was told she had been charged with violating Article 112 and taken to military court. She was detained until her trial in August 2015. Sasivimol was sentenced to 56 years in jail – eight years for each of the seven messages – but her sentence was reduced to 28 years because of her confession. The court ignored her retraction of the confession.
Sasivimol’s case is reflective of a form of identification that particularly threatens the right to privacy in Thailand: social surveillance.
The Thai government has deployed substantial resources in order to surveil the population over social media. The Technology Crime Suppression Division (TCSD) – the police unit that specialises in cyber-crime – has deployed a 30-person team that “operates around the clock, scanning online postings and following up complaints from the public on cybercrimes, including royal defamation.” The military also has a force of 60 to 70 officers participating in ‘Information Warfare’ and ‘Information Operations’ to monitor online content and investigate, arrest and charge authors of content deemed to be lèse-majesté offences.
Apart from the police and the military, the Thai government relies largely on the goodwill of Thai citizens to identify what it considers to be offensive speech. The social veneration of the royal family combined with a political context that fosters denunciation has led to the creation of ultra-monarchist groups – like the one in Chiang Mai – that focus on denouncing and harassing people they accuse of lèse-majesté offences. The polarisation of the Thai political scene heightens the tension: according to legal sources we have spoken to, some yellow-shirt supporters are inclined to join groups to accuse red-shirt members of lèse-majesté.
Shortly after the coup, Deputy Police Commissioner General Somyot Poompanmoung created a bounty programme to encourage Thai internet users to denounce dissidents. Thai citizens are encouraged to send pictures of anyone who may be “displaying opposition to the military coup.” For each picture sent, the denunciator receives 500 Baht (approximately US $14). As mentioned earlier, signs of dissent that have elicited Thai authorities' interest have reportedly included reading George Orwell’s books and eating sandwiches outside.
Below are examples of citizen groups whose purpose is to report what is deemed as illegal online content.