Computers, Social media and Thai law: Part I

Computer systems play an important role in many businesses and are easily taken for granted when they work well. What would happen if those systems were to be seized by authorities as part of an investigation of an offence involving the use of computer systems?

For companies without business interruption plans, such a seizure could seriously disrupt operations and dent profitability, but even for businesses with a backup plan, the unlawful use of computer systems by employees can expose the employer to penalties and imprisonment.

A recent surge in cases involving social media suggests that employers could come under increasing scrutiny for the actions of their employees. Social media tools are now being used for corporate marketing and many companies have their own Facebook page. In a three-part series, we will address (i) computer-based offences, (ii) employer liability, and (iii) how employers can reduce their exposure.

Mobile phones and computers provide an ideal platform to communicate instantly with large numbers of people. Unlike letters and publication in newspapers, electronic communication does not require the scrutiny or participation of third parties such as secretaries, the postal service or newspaper editors each time a communication is sent. A simple push of a few buttons can result in a message being seen by thousands of people. However, electronic communications are often viewed as less formal and are prepared with less care than traditional forms of communication, and this is where problems arise.

There are specific laws on computer crime. However, offences such as lese majeste and defamation committed through the use of computers are actionable under the general laws relating to lese majeste and defamation, and in Thailand, these offences can occur unintentionally with serious results.

Simply forwarding a video by e-mail, posting comments on a website or updating Facebook status can result in defamation, and in Thailand, defamation is actionable under Section 423 of the Civil and Commercial Code (CCC) and also as a criminal offence under Section 326 of the Penal Code.

If any statement is untrue and is injurious to the reputation or the credit, earnings or prosperity of a person, the CCC allows that person to sue for compensation anyone who made or circulated the statement.

While the truth of the statement may be a defence to an action under the CCC, it will not necessarily be a defence to an action for criminal defamation. Under the Penal Code, imputing anything to another person before a third party in a manner likely to impair the reputation of such other person or to expose such other person to hatred or scorn is defamation and is punishable by up to one year imprisonment and a fine of up to 20,000 baht.

The penalties increase to two years' imprisonment and fines of 200,000 baht if the defamatory statement is published. In other words, if someone writes and sends you an e-mail that defames an individual and you post the e-mail on a website, you would be exposed to greater criminal liability than the person who wrote the defamatory e-mail in the first place. Simply being involved in the dissemination of a defamatory comment via social media can give rise to liability for defamation, so tweeting or linking to defamatory comments can give rise to criminal and civil liability.

When computer systems are involved, it's not enough to avoid defamatory conduct, because even non-defamatory conduct can create liability. Section 14 of the Computer Crimes Act (CCA) makes it an offence to enter or forward computer data that is:

spurious and likely to cause injury to individuals or the public;

false and likely to cause damage to national security or stir up public agitation;

an offence under the Penal Code in relation to security or terrorism; or

obscene.

The widespread riots in England late last year were "organised" via BlackBerry and other mobile and social media communication devices and applications. A similar use of technology to organise riots in Thailand would be actionable under the CCA and would expose the offender to up to five years' imprisonment and a fine of up to 100,000 baht.

However, the same penalties would also apply to anyone forwarding a message that was "obscene" or a message that was false and likely to stir up public agitation. As the CCA does not provide any guidance on what constitutes "obscene" or "public agitation", it is possible that a message that was not intended to be obscene or stir up public agitation could still expose the sender to substantial penalties if it was false or was perceived by a group of people to be obscene.

The CCA also extends the concept of criminal defamation to images. Anyone displaying electronic images on a computer system accessible by the public is liable to up to three years' imprisonment and penalties of up to 60,000 baht if the display of the image is likely to injure the reputation of another person or expose another person to public hatred, contempt or humiliation. A good-faith defence is available; however, it remains to be seen what needs to be shown to establish the defence.

Spurious messages posted using any form of social media can attract substantial criminal liability as can messages that harm the reputation of others. The potential for claims for civil and criminal defamation and under the CCA is substantial because messages sent by social media tend to be sent instantaneously, without careful consideration and reach a large audience.

In the next part, we will look at instances where employers can be liable for communication sent by their employees.