Just as the days count down until the constitutional referendum on Aug 7, the free speech situation in Thai society may again reach a new low with the latest edict passed by the National Council for Peace and Order (NCPO).
NCPO Order No 41/2559, issued under the highly authoritative Section 44 of the interim constitution, addresses the regulation of information disseminated to the public and essentially authorises the country's communications regulator, the National Broadcasting and Telecommunications Commission (NBTC), to exercise broad power, from pulling the plug on a broadcast programme to shutting down an entire station's broadcast without having to be accountable for its actions.
Notably, the NBTC, established in 2011 as a result of the Act to assign frequency and regulation of broadcasting and telecommunications in late 2010, was designed to be an independent regulator whose main mission is to regulate the use of radio frequencies for the public interest, promote free and fair competition, as well as to safeguard people's communication rights.
Insofar as content regulation is concerned, the NBTC has mainly employed the authority endowed upon it within Section 37 of the 2008 Broadcasting Act which prohibits broadcasts of certain types of content (see table) which provides a comparison of content rules as outlined in Section 37 of the Broadcasting Act and Section 3 (1-7) of NCPO Announcement No. 97/2014.
Licenced broadcast operators are urged to screen their own content. Failure to do so could result in suspension of the programme or administrative fines as ruled by the National Broadcasting Commission (NBC), the broadcasting authority within the NBTC. If the problematic broadcast has produced serious damage, the station could face suspension or have its licence revoked. But in the pre-2014 coup period, there has been no record of licence suspensions.
To date, apart from warnings issued, only administrative fines from 50,000 baht up to 500,000 baht have been imposed on a number of broadcasters for a variety of reasons from pornography, bad morals, to threats to national security. A content board which acts as an advisory committee to the NBC usually screens each complaint case, summons the broadcaster in question to explain their situation, and passes a decision on the case which will be reviewed and endorsed (or not) by the NBC.
In its early days, the NBC was trying to pass specific content rules to operationalise the concepts in Section 37 but was met with fierce resistance from the professional media community who feared control of media freedom. These professional media organisations took the case to the Council of State which later ruled that the Broadcasting Act does not render the NBC any power to issue further content regulations.
Hence, the NBC and the attached content board have been relying mainly on personal or group judgments in their administrative decisions with respect to regulating broadcast content. Their style of work has also been reactive (to complaints submitted) and negative (fining and reprimanding), rather than proactive or positive as in advocating and promoting socially beneficial content.
Notably, during the height of political conflicts in 2010 and 2013 where colour-coded political broadcast stations were bombarding the public with propaganda and hate speech, the NBC was playing a highly neutral role with no regulatory action taken whatsoever.
The NBC and the NBTC's role changed significantly after the coup in 2014. Immediately after the coup was staged, all broadcast stations were blacked out in the beginning and only national broadcasters (mostly terrestrial television and radio stations) resumed within a week while all community radio stations, which number in the thousands, and cable/satellite television stations had to sign a Memorandum of Understanding (MoU) with the NBTC before they could resume broadcasting in August 2014.
The MoU, which was little known to the public, made these non-mainstream media more liable by tying their licence obligations to the controversial NCPO Announcement No 97/2014 which exerted tight control on the media (see right column in the table). Failure to comply with these rules could result in suspension and revocation of their licences.
An extra-regulatory agency was also set up within the NCPO known as the media monitor working group to monitor all media with political agendas and all broadcast political messages. This entity sends a weekly notification to the NBC if problematic content is detected.
The recent controversial suspension of Peace TV, formerly UDD (United Front for Democracy against Dictatorship) TV or better known as the red-shirt station, also originated from a notification filed by the NCPO's working group. Although the station has acquired an injunction from the Administrative Court to continue broadcasting, the NBC is pursuing new regulatory action against the station due to a different programme which has been ruled in breach of the MoU.
With the passing of the new edict, the intense controls will now span all broadcast stations as has been the case with former cable/satellite stations. Worse yet, the NBTC officials, usually regarded as "accountable" government officials, will automatically be immune from any consequences of their actions as the edict frees them from all liability -- civil, criminal, and disciplinary.
While the NBTC may be a quasi-judicial entity, their content regulation decisions have been seen as quite problematic by stakeholders as they are largely based on the personal interpretation and judgement of committee members which may be tinged with bias and preference.
All in all, NCPO Order No 41/2559 does provide a condition that the regulatory action (that would warrant protection) imposed must be lawful, non-discriminatory, and proportionate to the offence. Affected parties still hold the right to pursue legal action.
The media and public communication will definitely outlast the NCPO and any of their orders. But whether the NBTC will stand the test of this political struggle, with its integrity and accountability intact, is another story.
Assistant Professor Pirongrong Ramasoota teaches and researches on media, communication and society at the Faculty of Communication Arts, Chulalongkorn University.