On July 29, an order by the Prime Minister was published by the Royal Gazette prohibiting the presentation or dissemination of information that will incite fear among the public or that intentionally distorts the truth to cause a misunderstanding about the emergency situation, which may impact national security, public order, or public morals.
In the case of an offence, the National Broadcasting and Telecommunications Commission (NBTC) will notify Internet Service Providers (ISPs) to check the IP address of the user. ISPs are obliged to block internet access. The NBTC will then relay the information to the Royal Thai Police for further legal action, which includes imprisonment of up to two years or a fine of up to 40,000 baht.
The backlash was, of course, swift and immediate. Amid this criticism, it is important to carefully deconstruct just why this order is legally so problematic.
Good legislative design is crucial to drafting any legal document, including the order. This is because the law can have far-reaching implications on society, imposing obligations and removing the rights of individuals. This means that both the substantive and procedural dimensions of the document must be carefully considered.
Unfortunately, the order fell short on both dimensions.
When drafting legislation, the government must carefully consider its scope and implications. In particular, proportionality and necessity – key principles of constitutional and international law – must underpin every decision taken to restrict the fundamental rights and freedoms of the people, including freedom of speech. This is especially true when drafting legislation with a criminal offence, considering its severe effect on the deprivation of an individual’s liberty.
Under the principle of proportionality, the government must ensure that the advantages to issuing such an order outweigh the disadvantages. However, the order fails to recognise this principle with its blanket prohibition of the vaguely-defined and wide-ranging phrase: “dissemination of information that will incite fear among the public.”
Note also that this part does not refer to “fake news.” This means that the government is essentially prohibiting the dissemination of any news that causes fear, even if it is true.
Another consideration that this vaguely-defined phrase fails to take into account is that social media users may sometimes share information that is false by honest mistake, hoping that it would help others. It also failed (perhaps intentionally) to account for honest opinions or legitimate criticism.
These actions should not be criminalised. Be it a byproduct or through intentional design, the order creates a climate of fear that fosters self-censorship and prevents the sharing of information that can save lives for fear of criminal prosecution.
In a pandemic, this is the last thing we need.
The method by which the government plans to identify and prosecute wrongdoers is just as dubious and hardly proportionate nor necessary. Blocking an IP address does not prevent a user from posting through another IP address, or a user can use VPN to mask his or her IP address. Furthermore, users connected via the same router can share the same IP address; should the NBTC block the internet for that address, then everyone using that router will be affected.
This is not to mention the fact that hackers can use someone else’s IP. Therefore, the order may have the unintended consequence of implicating and affecting innocent people. Indeed, given all these scenarios, a Thai court has previously decided that an IP address alone cannot prove guilt beyond a reasonable doubt, as the Internet Law Reform Dialogue (iLaw) group has aptly reasoned. For the NBTC to be given this power is to circumvent due process under the law and unilaterally act as judge, jury, and executioner.
Furthermore, existing mechanisms – some of which are already controversial – are well in place to deal with fake news. For one, the Computer Crime Act and its ministerial regulations can already prosecute users for sharing misinformation online. The Ministry of Digital Economy and Society can ask the court to ban illegal content, and a court order will then be issued. Therefore, as the court already has the power to counter fake news, the power now afforded to the NBTC is unnecessary, regardless of the circumstances.
Given this, the order is clearly not a proportionate nor necessary response to countering fake news. While misinformation is a real and rampant problem, it must not be met with censorship. It must be countered with transparency, access to information, and accurate facts.
As iLaw correctly pointed out, the authority to issue this order comes from Emergency Decree Section 9(3), which prohibits the presentation or dissemination of news that causes fear or distorts the truth about the emergency situation. However, the section does not allow the government to block internet access; rather, the power to do so must come from Section 11(5), which pertains to violent acts only. As this order is not issued as a result of an immediate violent act, the Prime Minister cannot issue this order to block internet access under the correct legal mechanisms.
Of course, legal technicalities have not deterred the government before. The NBTC itself is a puppet of the government; the junta-appointed senate played a significant role in handpicking its members, including through approving the Act on the Organization to Assign Radio Frequency and to Regulate Broadcasting and Telecommunications Services (No.4) B.E. 2021. This structural design ensures that the type of “misinformation” the NBTC is interested in aligns with that of the administration, as previously seen before.
The implications these substantive and procedural concerns bring have already been extensively discussed elsewhere, including previously on Thai Enquirer. This analysis of the legal ramifications is meant to be another mere voice urging the government to listen to its people and stop criminalising the pursuit of truth.
While the truth is not always easy to hear, that doesn’t make it any less true. Nor does denying it make the situation any better.
Right now, truth is not the only casualty. Time wasted on these counterproductive endeavours also cost the lives of Thai people. While the government is busy saying the bodies strewn across the streets of Bangkok are staged and trying to stop celebrity call-outs, the death toll is mounting by the day. It is time for the government to concentrate their efforts on other, more important matters, and heed the people’s demands.
After all, the people are not your enemy. The people are who you serve.