BANGKOK - The Computer Crime Act (CCA) has become a hindrance not only to free expression but also to business innovation and entrepreneurship, say academics and computer experts.
The UN Office of the High Commissioner for Human Rights has been closely monitoring the way the CCA is being applied, particularly in conjunction with Article 112 of the Penal Code dealing with lese majeste laws.
UIn the last five years, for example, websites deemed harmful to the royal institution and blocked under the CCA outnumber those involving other violations, such as obscene content, by more than three to one.
"It's not only the issue of freedom of expression that is undermined or compromised by the two laws, but the problematic application and their ambiguous, if not vague, procedures have already led people to self-censorship and/or to jail," said a Bangkok-based UN official.
The application of the CCA, enacted in 2007 by the Surayud Chulanont government following the 2006 coup, has also scared off businesses, according to Ann Lavin, director of public policy and government relations with Google.
Concern about arbitrary use of the law, she said, has undermined business innovations and startup companies and deterred new foreign direct investment (FDI) in ventures that need fast and efficient ICT infrastructure.
"The CCA should rather deal with direct crime on computers, like phishing. And if it is a crime, it will be a crime either online offline," said Ms Lavin.
"But the point is that foreign investors will not invest here because the law says the intermediary (such as a webmaster) is liable."
She said Article 15 of the CCA had cost Thailand a business fortune. "Only 1% of the web content is in Thai, there should definitely be more, but people are afraid of the laws so they don't want to create websites."
Article 15 stipulates that any service provider who intentionally supports or consents to commission of an offence under Article 14 in the computer system under his control shall receive the same punishment as prescribed in Article 14 (the same as the offender).
Businesses based on innovation, she said, needed physical and social feedback. "They need to connect and liaise with users of their products at all times but here you have a system that needs to check everything, every time," Ms Lavin said at a seminar in Bangkok earlier this week.
"It's pretty obscure and could land you many years in jail. ... This puts innovators at unnecessary risk, financially and legally."
Thailand ranks 57th in one global survey of innovation. A recent innovation survey jointly done with the Commerce Ministry has also showed that webmasters felt paralysed as they did not understand the law, while innovators found it too hard to adjust to unclear procedures so they chose to settle elsewhere, said Ms Lavin.
Elsewhere, she said, people could individually make remarkable profits from advertising by creating popular content online — as in the case of an Indian grandmother's cooking show - or also from education which has enormous impact in the United States.
But here, Ms Lavin said, Thai people would rather watch but not exploit the chance to create on the internet. "We need to fix this, because it is unhealthy for Thailand. Google has been deterred from launching a number of Thai products because of that article too."
If Thai authorities take the legal responsibility off the shoulders of business, it will be better, she added. "Vietnam might attract more notoriety for its internet curbs but it doesn’t have a scary thing like Thailand's law as it doesn't say an intermediary could be a criminal."
The Google Transparency report showed that it received two requests in the first half of 2012 from the Ministry of Information and Communications Technology to remove 14 YouTube videos for allegedly insulting the monarchy. Google has barred three of those videos from being viewed in Thailand.
Attempts to amend the Computer Crime Act have been put on hold amid protests from activist groups, such as the Thai Netizen Network, iLaw, and the Network of Human Rights Law. They are concerned that the new version would have an even wider impact on civil liberties and media freedom.
A 712-page report recently released by civil society groups showed that from July 2007 to December 2012, the courts issued 317 orders to suspend 102,191 URLs - 77,491 of them deemed to contain royal defamation and 23,456 deemed to have obscene content, according to the Freedom of Expression Documentation Centre.
Thammasat University law lecturer Sawatree Suksri has suggested that the new amendments needed to free internet service providers of legal responsibility.
"We might have to challenge the court order to block the websites as being against the constitution's prescribed principles of freedom of expression," said Ms Sawatree.