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July 2, 2021

Thai Courts Seek a Balance Between Free Speech and Online Content Takedowns

In January of 2017 the Computer Crimes Act, B.E 2550 (CCA) was amended, providing, amongst other things, additional detail on computer data classifications that justify orders to suspend online dissemination of content. With the additional clarity provided in the 2017 amendments, the Ministry of Digital Economy and Society of Thailand began more actively pursuing online content that it considered to be in violation of the CCA or to be compromising Thai national security as provided in the Penal Code. As a result, the number of court orders issued to suspend the dissemination of online content has risen significantly over the past few years. At the same time as this escalation of court orders to take-down or otherwise remove certain online content, there had been little or no attempt to challenge such orders, largely due to the fact that orders are issued on an ex-parte basis and because of an absence of any clear method to appeal provided in the CCA.

It was not until October of 2020, more than three years after the CCA amendments, that the public learned for the first time that a challenge to a previously issued court order for the takedown of content was successfully made. In such case, the court accepted a petition in opposition to the court takedown order and scheduled an additional hearing, ruling it proper to re-conduct the hearing and giving both parties the opportunity to provide the court with full information to decide on the challenge. While this was good news for the content providers and users in this case, the court, nonetheless, failed to provide specific criteria on what would justify a court ordering an opposition hearing or on when it would allow an opposition to even be filed with the court.

In February of 2021 a second challenge to a court issued takedown order was made. This challenge requested that the court cancel a takedown order issued ex-parte, arguing that the court did not provide an opportunity for the content owner, as the injured party, to oppose the request before the court issued the order. After careful consideration of the petition challenging the order, the court cancelled the takedown order, ruling that the court should not have conducted an ex-parte hearing for the issuing of the takedown order. The court then conducted a hearing to consider the opposition, after which it issued an order to cancel the takedown order. Like the October 2020 case, the February 2021 case involved online dissemination of content of a politically sensitive nature.

Following these recent cases, in March 2021, Tilleke & Gibbins was successful in making another challenge against a court issued takedown order, dated October 2020, on the basis that the injured party was not informed of the ex-parte hearing and, consequently, there was no opportunity to oppose the request before the takedown order was issued. The court then conducted an opposition hearing at which we were permitted to present arguments in support of our client’s position on the merits. After consideration by the court, we were successful in obtaining a cancellation of the previously issued takedown order.

Subsequent to the March 2021 case, and as a direct result of these recent cases, we have learned that the court has changed its procedures in conducting hearings for issuance of takedown orders. We have also observed from content owners that some of them have begun to receive summonses from the court to attend investigation hearings to determine whether issuance of a takedown order is warranted. Summoned content owners are also now being given the opportunity to submit oppositions to the court before the scheduled hearing date. This is a recently implemented court procedure to ensure that the argument that a party did not have the opportunity to oppose a request for takedown of content is no longer applicable—under the new procedures, the content owners are now aware of the hearing date and are offered an opportunity to oppose the petition as a matter of course. We are confident that this new practice ensures that once a court takedown order will become final once it is issued, as there is no appeal route specified for such orders in the CCA. While it appears that this is a uniform procedure for content takedown requests, we cannot confirm whether this new procedure is now being applied to every request to issue court takedown orders.

Due to the fact that lower court orders and decisions are not published and do not form binding court precedent in Thailand’s civil law legal system, we cannot be certain of the consequence of this new procedure. What we can say is that we recommend strongly that content owners not ignore their right to submit an opposition to content takedown requests and should participate fully in the opposition process, including submitting a written opposition and attending the investigation hearing. Failure to do so would result in missing the opportunity to argue the merits of the request, or even an opportunity to present witnesses to support their opposition to the takedown request.

Finally, we have not yet heard whether service providers, who are not the actual owners of the content on their platforms, are also being summoned to appear or otherwise oppose requests for takedown of content. As such, it appears that most service providers are not yet being included in the takedown opposition process, even under the new procedural rules. For this reason, we believe that there remains a route for a service providers to challenge court orders for takedown of content on their platforms on the basis that the service providers did not have the opportunity to oppose the request.

For more information regarding CCA-related matters, please contact Michael Ramirez at [email protected], or Piyawat Vitooraporn at [email protected].

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