From the islands of Indonesia, the IP Komodo prowls South East Asia and beyond looking for succulent morsels of intellectual property news with the aim of to raising awareness of South East Asia's IP issues to help people understand this diverse region's IP complexities.
Wednesday, April 8, 2015
Digital ISP liability in Thailand
There are several areas where control over netizens is
exercised in Thailand. The first is insulting the monarchy, lèse majesté. In
2012 an Internet user was convicted of this when she failed to delete from a
forum she administered, allegedly insulting comments. The other is the equally
vague issue of free speech. There have been several instances of content
removal for this reason. It is said that a lack of Safe Harbour protections for
ISPs leave them with uncertain liability and therefore they prefer to take down
content without much inquiry. Especially as the 2014 coup and martial law has
made them more conservative. 2 Digital Economy laws recently passed by the Thai
military government make changes. An amendment to the 2007 Computer Crime Act,
which makes ISPs liable for offenses such as lèse majesté by their users now
provides that ISPs avoid liability only if they can prove that they have complied with the warning and removed the content. In essence
it makes removal necessary, to avoid risk. Another amendment is meant is for copyright. ISPs are not
liable if they do not control, initiate or order the infringement. Only a court
order can override this. So for copyright the ISP protection is wider than for
the free speech areas. ISPs exercising no control, the so called 'public utility'
approach escape liability. Only when they start to take on editorial
responsibility will liability arise.
For now trademarks attract no such specific protection. Secondary liability is not specifically set out, but in practice ISPs do comply with IP holder requests. IP Holders and ISPs will like the clarity the amendments bring.
But beyond this, it will also helps tackle the problem of online infringement
by setting clear borders. Because of the influence of Thailand's control of
content deemed inappropriate for royal or free speech reasons, ISPs may still
find it easier to take content down than risk liability. Free speech advocates
may complain, but Thailand is a country with widespread IP problems that may
justify such an approach.