This op-ed by GNI Independent Chair Jermyn Brooks originally appeared in the Wall Street Journal Asia:
The Thai government bought one million tablet computers last month to distribute to students across the country. This ambitious “one tablet per child” policy, one of Prime Minister Yingluck Shinawatra’s campaign promises, is the largest such program in the world and shows that Bangkok wants to meet the challenge of an Internet-based economy. But the newly tableted youth will soon discover that Thailand’s Internet is hampered by another challenge: restrictive laws on websites, social networks and search engines.
The 2007 Computer Crimes Act holds online intermediaries (web portals and the like) liable for illegal content posted by others. The only condition is that these middlemen sites or servers must be shown to have the “intent to spread” the content, but in practice the definition of “intent” in this context is so vague the law can apply to just about anyone. This law is particularly significant in Thailand because other laws, especially the lese-majeste laws prohibiting certain comments about the monarchy, can apply to many kinds of Internet communications.
Thailand has in recent years scared Internet businesses and investors away with several high-profile criminal cases that rely on the Computer Crimes Act. Last week, Chiranuch Premchaiporn, known by her nickname “Jiew,” was convicted for comments that others posted on her popular online newspaper Prachatai which were deemed disrespectful to the monarchy. Not taking down a user’s comment in a “reasonable” amount of time can be deemed tantamount to promoting it. Because Jiew didn’t take one comment down quickly enough, she had broken the Computer Crimes Act.
Jiew escaped a severe sentence, but the incident demonstrates the power of the Computer Crimes Act and raises serious questions for web operators. The law specifies neither how such an intermediary should receive official notice that they’re hosting something illegal nor how long they have to take it down after that notice. The Jiew trial didn’t clarify these questions either. Now, news reports indicate the law may even be revised to punish intermediaries further. The proposed revision would fine the intermediary, or jail him to a term that would be one-and-a-half times the one handed to the actual criminal.
Beyond the serious consequences for individuals, this law also exacts an economic cost. Bangkok once dreamed of becoming Southeast Asia’s Internet leader, and has invested in information technologies. Besides the one tablet per child program, it plans for free wireless connectivity and the deployment of third-generation telecom networks. McKinsey recently looked at 30 countries that, like Thailand, have a fast-growing economy and rapidly expanding Internet and found that the Internet on average accounted for 1.9% of those countries’ economic output.
The opportunities in Thai e-commerce are impressive, and the right laws can help. Today on Tarad.com, Thailand’s largest e-commerce site, 45% of all transactions are being made with credit cards. The number two player in the e-commerce space, Shopping.co.th, has seen similar growth, with the value of their online credit card transactions increasing 1000% last year. That’s due to laws that effectively punish online fraud and support secure e-banking practices.
A poorly conceived law that targets the middleman website or portal jeopardizes all these advantages. Online bulletin boards, especially, are a huge source of information and hence build value. Pantip is Thailand’s largest, with an average of 4,600 new discussion topics per day. The information on those boards can help consumers to find the right prices, businesses to find the right customers, startups to get discovered and friends to connect. But how is an e-commerce site supposed to judge the risk of an illegal comment being posted in its product review section?
All this seems obvious and yet the Thai government is unlikely to repeal the law. A loosely defined law allows the authorities to prosecute intermediaries, rather than provide a clear framework that clarifies the risks and allows businesses and users to make informed decisions and reap the benefits of a thriving Internet economy.
Still, there are some ways for the law to be changed to reduce the harm. Thailand needs laws like the U.S. Digital Millennium Copyright Act of 1998 or the European Union’s E-Commerce Directive that clarify the risks intermediaries take on. When websites are provided safe harbor by governments, they know exactly what it will take to operate within the law and can comply accordingly. But establishing a safe harbor takes work, requiring all parties—governments, intermediaries and users—to engage in the process. Although not the path of least resistance, a clear legal framework for safe harbor can enable the removal of illegal content while not undermining innovation and economic opportunities.
The Internet is bound to feature in Thailand’s high-growth future. Bangkok now has an opportunity to lay the legal foundation for that future, if it understands that free expression plays a big role in economic development.
Mr. Brooks is the independent chair of the Global Network Initiative.
Reprinted from The Wall Street Journal Asia © 2012 Dow Jones & Company, Inc. All rights reserved.