Amidst continuing protests, calls for political reform, and mass dissatisfaction with how Thailand handles COVID, Thailand’s government is doubling down on efforts to throttle dissent and protest, online and off. It is relying on laws that it claims protect against “public fear.” In fact, by threatening to censor those who speak out, it is the government that is instigating fear – in a weak bid to distract from flailing governance.
Civil society has made some progress fighting censorship of how Thailand handles COVID. Following criticism and legal challenge of the most recent “public fear” orders, the government revoked Regulation No. 29. This is a welcome development, but as we explain below, other problematic laws to inspire fear and control online speech remain. More will also likely emerge – as the Prayut administration continues to aggressively preserve its political dominance.
As protests continue, so do (il)legal controls on speech online
In the early months of 2020, student-led protests erupted across Thailand calling for an end to the military-led administration of Prime Minister Gen. Prayut Chan-o-cha. These protests were unprecedented in three ways: 1) student leaders broke centuries-old taboo in publicly criticizing and calling for reform of the monarchy (seen as supportive of and sustaining current military rule); 2) they used online and social media as never before to do so; and 3) this has enabled and expanded what is now a leader-less movement, sustained through the internet. This included widespread and active use of social media platforms such as Twitter, TikTok, Facebook, and YouTube, messaging apps such as Telegram and Bridgefy – and even dating app Tinder – to express dissent, communicate, coordinate, and organize.
Sensitive to criticism, including questioning of how Thailand handles COVID, the military government has reverted to abusing a rhetoric of supposed “rule of law” to curtail what it deemed impermissible information online. Individuals were harassed, detained, and imprisoned under articles 112 and 116 of the Criminal Code criminalizing lèse majesté and sedition; criminal defamation and contempt of court provisions; and the Computer-related Crimes Act. These included civil society activists, human rights defenders, journalists, and opposition politicians – detailed in reports by Amnesty International and the International Commission of Jurists. In particular, Thai Lawyers for Human Rights documented rising cases of students in the pro-democracy movement being charged with serious crimes of royal defamation, sedition, and contempt of court – including children.
As if these laws were not punishing enough, the COVID pandemic offered the government another opportunity to expand regulatory measures to control expression and information online. Thailand’s leadership argued that to manage the pandemic, it needed to censor content online to protect against “public fear.” In March 2020, the Prime Minister declared a state of emergency to combat the pandemic, following which he issued Regulation No. 1 to prohibit “dissemination of news which may instigate fear among people” or “affect state security, public order, or good morals.” In effect, it tried to disallow any online critique of how Thailand handles COVID. This was in line with section 9 of the Emergency Decree on Public Administration in Emergency Situation B.E. 2548 (2005) – a law under which the Prime Minister has broad and sweeping powers to enact any regulation prohibiting content his government deems impermissible. In July 2021, this ban was bolstered by the introduction of Regulations No. 27 and 29 – the latter granting the authorities new enforcement powers to censor online content and investigate internet users. On August 9, following a petition by media outlets, Thailand’s Civil Court suspended Regulation No. 29, following which it was revoked by the Prime Minister. As we note above, while this is a welcome development and a victory for civil society and human rights, the other problematic laws we have described remain in force.
If the latest government initiatives are genuinely aimed at protecting public health, not quelling criticism of how Thailand handles COVID, the recent revocation raises the question: Was this law necessary in the first place? Earlier regulations and the existing Emergency Decree already allowed the state to control content “causing fear,” and Regulation No. 29 repeated the vague and overbroad provisions of earlier laws that would have resulted in discriminatory and rights-violating implementation. It appears that perhaps the laws were not meant to protect against “public fear” so much as instigate fear among people worried about how Thailand handles COVID. This kind of fear – the fear of prosecution – might help distract people from other political concerns.
Distraction from dissatisfaction with regime
This pattern of fear-mongering and distraction is evident from recent moves by Thailand’s leaders and the Ministry of Digital Economy and Society (MDES) – the main body charged with policing the online space – to curtail expression and information online. Instead of addressing the problems protesters are raising, they are attacking the messenger, increasing state control of internet service providers, online intermediaries, and social media platforms.
In September 2020, the MDES filed police complaints against Facebook, Twitter, and Google for failure to comply with government requests to take down content relating to ongoing protests which they claimed violated lèse majesté and sedition laws. As these cases are ongoing, in May 2021, the Deputy Prime Minister ordered the Anti-Fake News Centre – an online content-monitoring body led by MDES and the Thai police – to “crack down on fake news.” Soon after, ARTICLE 19 noted that the Prime Minister had issued an executive order to establish a “Committee on Suppression and Correction of Dissemination of False Information on Social Media,” and in June 2021, the Prime Minister and Minister of Defense had ordered the Council of State to review domestic laws with the view to expand regulation of social media platforms.
On August 14, a ministerial regulation was brought into force by the MDES in line with the Computer-related Crimes Act – including obligations on internet service providers and social media platforms to preserve internet traffic data for up to two years where data is deemed to violate national security or other domestic criminal laws. These provisions blatantly disregard users’ right to privacy, and now allow the government to oblige platforms such as Facebook, YouTube, and WhatsApp to retain data that the authorities deem unacceptable – potentially allowing for such data to then be turned over to the state. This includes potentially vast content and communications between individuals merely expressing criticism of, and engaging in political discussion about, the state and the monarchy.
Distraction from how Thailand handles COVID
The government’s moves to curtail speech online come as the Prayut administration faces increasing criticism for mismanagement and incompetence in handling the COVID pandemic. Amidst rising cases of the Delta variant across Thailand, activists and commentators have observed that combating “fear-mongering” has emerged in recent months as a “scapegoat” to distract from the regime’s failings. Notably, Thai free expression monitoring group, the Internet Law Reform Dialogue (iLaw), highlighted that Regulation No. 27 drew within its remit criminalization of even truthful information deemed unacceptable by the authorities – by removing “false information” which had been noted in Regulation No. 1 and focusing only on content “causing public fear.” This means even legitimate criticism of the government’s handling of the pandemic or sharing of information on COVID-19 in good faith can potentially be censored under the law. This was evident when, in July 2021, a rapper was fined 2,000 THB (approx. US$ 60) for a Twitter post criticizing the Prime Minister’s mismanagement of the pandemic. Meanwhile, according to OHCHR Bangkok, approximately 100 complaints have been filed against individuals for alleged “false information about the duties of the Prime Minister and the Cabinet” – not about the virus itself. These individuals are currently under police investigation.
As attempts to silence dissent online continue, the state is also sustaining its assault on rights offline. As protests continue on an almost-daily basis, reports continue of the authorities responding with increasing aggression – detaining, assaulting, and imprisoning individuals for expressing dissent; and using water cannons, tear gas, and rubber bullets to suppress demonstrations. Allegations of live ammunition being used against protesters, including children, were also recently reported.
And yet, despite the regime’s desperate efforts to invoke fear as a tool to control their people, people continue to resist. In fact, the aggression of the regime only reflects what veteran journalist Pravit Rojanaphruk noted was its “paranoia and insecurity” – as reflected in a leaked “watchlist of enemies of the state” which included journalists, lawyers, student activists, human rights defenders, musicians, and opposition politicians. Instead of listening to its people, the Thai government continues to focus energies on what Human Rights Watch rightly described as a “witch hunt against peaceful dissenters” – in a floundering attempt at control.
As we recently observed, across Asia, governments are not only failing to meet their legal obligations to protect the rights to freedom of expression, information, association, and privacy online as well as offline, they are actively stripping away these fundamental rights to score political points – and to the detriment of their people. That is clearly what is happening in Thailand. It is not the people of Thailand who must be prevented from “causing public fear,” it is their government and leaders.