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August 12, 2021

Thai Court Rules That Regulation Restraining Internet Access Violates Right to Free Expression

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In a politically charged climate and in the face of governmental efforts to curb unrestrained publication of what it calls “fake news”, the Thai Civil Court, in a ruling of significant importance, has upheld the constitutionally recognized right to freedom of expression in all mediums of communication, including the internet. Specifically, on August 6, 2021, the court issued an order prohibiting the Prime Minister from enforcing the Regulation Issued under Section 9 of the Emergency Decree on Public Administration in Emergency Situations B.E. 2548 (2005) (No. 29) (Regulation 29), which was issued on July 29, 2021, under Section 9 of the Emergency Decree on Public Administration in Emergency Situations B.E. 2548 (2005).

Under Regulation 29 it is prohibited for any person to present or disseminate content that:

  • is distorted information which causes misunderstanding of the emergency situation to the extent of affecting the security of the state, public order, or good morals of the people of Thailand; or
  • may instigate fear among the people.

Significantly, Regulation 29 allows the National Broadcasting and Telecommunications Commission (NBTC) to identify the IP address and other information of the owner of content said to violate the regulation. It also empowers the NBTC to order Internet Service Providers (ISPs) to provide such information and to cease providing internet services for the IP address. Violation of Regulation 29 and failure by ISP providers to comply with orders issued by the NBTC both carry punishment including fines and imprisonment.

While Regulation 29 is said to be an attempt by the Thai Government to address “fake news” relating to the COVID-19 pandemic in Thailand, the regulation has been widely criticized as broadly empowering the government to control all forms of information in the public sphere, including intervention with essential media functions. This is exacerbated by the use of ambiguous language prohibiting content “that may instigate fear among the people” and which is not limited to false or distorted information. The immediate effect of Regulation 29 was a jointly filed lawsuit by online press and human rights organizations seeking revocation of Regulation 29.

On August 6, 2021, the Civil Court issued an emergency order prohibiting the Prime Minister from enforcing Regulation 29. In its decision, the court ruled that a prohibition relating to “content that may instigate fear among the people” is ambiguous and may lead to an unnecessarily broad interpretation affecting freedoms of expression and the press guaranteed by the Constitution. In addition, the court ruled that the regulation placed a disproportionate burden on the people to interpret and comply with the law.

Moreover, the court ruled that access to internet services is an important communication channel for society, a fact that is particularly important while Thailand is employing Covid-19 lockdown measures. The court confirmed that regulations requiring ISPs to cease providing internet services for owners of content violating Regulation 29 results in an impermissible blockage of communication channels and is unconstitutional.

Although this order is neither a final judgment nor a binding precedent, it represents an uncommon position of the courts and it is most likely that other courts would reach similar conclusions should further regulations seek to impinge on recognized constitutional freedoms of expression. As confirmation of this result, the Thai government issued a regulation effective August 9, 2021, canceling Regulation 29. While there may be future efforts to restrict or otherwise control online content, including through the exercise of power under the Computer Crimes Act B.E 2550 (2007), the courts stand poised as a scale through which control and restraint mechanisms shall be balanced.

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