Case

7 April 2010 
The Center for the Administration of Peace and Order sent out a letter to the Minister of Information and Communication Technology, referring to his authority under Article 9 (2) of the Emergency Decree, demanding the shutting down of the website www.prachatai.com including other 36 websites based on the reason that these websites had publicized news and information that might affect national security. As a result, www.prachatai.com was inaccessible from 8 May B.E. 2553 (2010) onwards.

When Prachatai tried to solve the problem by changing to other domain names (e.g. www.prachatai.info, www.prachatai2.info, www.prachatai2.info, www.prachatai3.info) including using other types of communication through social network (e.g. Facebook and Twitter), they discovered that their websites were consistently blocked, without being notified any orders or reasons whatsoever.

During the time, there was a gathering of the red shirts in Bangkok and some areas in near by provinces.  Due to this event, the administration under Mr. Abhisit Vejjajiva declared the Emergency Decree on Public Administration in State of Emergency to restrain the gathering.  The decision deployed the military unit to take control of the gathering on April 7th B.E. 2553 (2010), the government declared the State of Emergency as being severe and set forth security measures to take control over the various medias which deemed to have information supporting the mentioned red shirts’ gathering.

23 April 2010 
Prachatai on behalf of the Foundation for Community Educational Media (FCEM) by Ms. Chiranuch Premchaiporn, the attorney-in-fact, filed a complaint against the Prime Minister as Defendant 1, Director of the Centre for Resolution of Emergency Situation (CRES) as Defendant 2, Minister of Information and Communication Technology (ICT) as Defendant 3, the Ministry of Information and Communication Technology as Defendant 4, and the Ministry of Finance as Defendant 5, with the charge of violating the rights and liberties under the Constitution, asking for 350,000 Baht worth of damages (Black Case No. 1455/2553).

The complaint can be summarized as following:
On 8 April B.E. 2553 (2010), Defendant 3 and Defendant 4 proceeded to shut down the plaintiff’s website (http://www.prachatai.com) showing “this website has been blocked by ICT” as a message and Defendant 4’s ICT logo on the site instead.  The plaintiff was not able to disseminate news, events and various journals through Prachatai news website.  As a result, the general public was no longer able to receive such news, situations and various journals from the plaintiff’s website.

The preceding actions are deemed to be in violation of a person’s rights and liberties recognized by the Constitution.  Even though the Emergency Decree allows for the derogation of the rights and liberties entitled under Article 45 of the Constitution, the State is not allowed to arbitrarily act in ways that restrict, deprive, or violate a person’s rights and liberties protected by the Constitution, without a substantial amount of evidence or reasoning.  Furthermore, the State shall not derogate such rights to the extent that it destroys the essential substance of the rights entirely.

Due to the fact that Defendant 1, 2, 3, and 4 did not illustrate any reasoning or evidence that demonstrate the plaintiff’s business engagement or actions as unlawful operations; it did not appear what the CRES Council, who issued a resolution to block the website, and Defendant 2, who signed the order demanding Defendant 3 to block the website, used as facts or circumstances to consider that the plaintiff's Prachatai news website contained messages that may cause fear to the general public, or their intention to distort news and information in order to cause misunderstanding towards the emergency situation that could affect national security, public order, or good morals to the point that entitles all four defendants to perform such actions.  In addition, the CRES Council or Defendant 2 have never informed or noticed the plaintiff of the reason behind the order to block plaintiff's website, or have they given the plaintiff the chance to explain itself, who deemed as an accused and have been affected by such order.

The fact that the CRES Council issued a resolution blocking the website and Defendant 2 ordered Defendant 3 to block 36 websites, including the plaintiff’s Prachatai website, even though there was no factual basis that the news, events, blogs/articles, or any comments published on the plaintiff’s Prachatai website contained any subject, part, or statement, that may cause fear to the public or that they had published these messages with the intention of distorting news and information that led to misunderstanding towards the State of Emergency to the extent that it affect national security, public order, or good morals of the people.  Therefore, such order is not in conformity with the conditions provided by law, which injures the plaintiff's rights causing damage to the plaintiff.
 
The actions of Defendant 1, 2, 3, and 4 were unlawful acts or transgressed what was provided by law, considered to be willfully or negligently unlawful doings to the plaintiff that was against the Legal State doctrine and the Rule of Law, the Constitution, and universally accepted principles of law.  It was in violation of the rights and liberties, provided for and protected by, Article 45 causing damage to the plaintiff.

Defendant 4, as a joint wrongdoer and the affiliated organization of Defendant 3 and 5, and as the Ministry of Finance—who is bound to make compensation for any damage caused by a wrongful act committed by a non-affiliated State official according to Liability for Wrongful Act of Official Act B.E. 2539—is therefore vicariously liable for the injury.

This case is an administrative case which should fall within the jurisdiction of the Administrative Court; however, Article 16 of the Emergency Decree on Public Administration in State of Emergency B.E. 2548 deprived the Administrative Court of its competence to try and adjudicate this case.  Thus, the plaintiff had to file this case to the Court of Justice and ask for the Court’s authority to protect and secure the plaintiff’s rights and liberties.

If the Court restricts the Court’s jurisdiction by refusing to monitor Defendant 2’s usage of authority and discretion with the reasons that Defendant 2’s usage of authority was done according to the Emergency Decree on Public Administration in State of Emergency which is the use of authority and discretion specifically under the administrative section and the Court is not authorized to monitor their proceedings, it will critically affect the rights and liberties of the plaintiff along with the Thai public.  Because it will accept that after there is a declaration of the State of Emergency in an area, the executive branch will be able to refer to their authority, according to the Emergency Decree on Public Administration in State of Emergency, to arbitrarily commit wrongful acts against the people’s rights and liberties, without being obligated by the conditions or elements of the law provided under the Emergency Decree, or without having to regard whether their use of authority will go against other written laws or even the Constitution.  If this turned out to be the case, the plaintiff and the Thai people’s rights and liberties according to the Constitution would have no meaning whatsoever; because, it would mean that the people had no guarantee for their rights and liberties by the judiciary and that the executive branch was above any examination.

The damage could not be put into number; but in order to set a norm and prevent the State from ever using its authority or discretion in an unlawful manner and therefore infringe the people’s rights and liberties, the plaintiff demands for damages from the five defendants in the total amount of 350,000 Baht (three hundred and fifty thousand Baht).

Request for Relief
1. Respectfully requests that the Court revokes the order blocking Prachatai website;
2. Requests that Defendant 1 to 4 enable public access to Prachatai website, and if the defendants fail to oblige on such request, a judgment may be a substitution for declaration of intention of all four/three defendants;
3. Requests that Defendant 4 and 5 jointly or severally compensates for the rights and liberties according to the Constitution to the plaintiff in the amount of 350,000 baht (three hundred and fifty thousand Baht);
4. Requests that Defendant 4 and 5 jointly or severally compensates for the damage in the amount of 20,000 Baht (twenty thousand Baht) daily;
5. Requests that all five defendants compensates, on behalf of the plaintiff, for the costs to abide the event including the attorney’s fee in the highest rate.

On April 23th B.E. 2553 (2010), the same day that the complaint was filed, the Civil Court read its decision in Black Case No. 1455/2553 where the judge presided over his bench at 16.30, summarized as following:

After consideration, the Court decided that the intention of the Emergency Decree on Public Administration in State of Emergency B.E. 2548 is to give the Prime Minister (upon the consent from the Cabinet) authority to declare the State of Emergency all over the Kingdom or in certain areas of the Kingdom corresponding to what is necessary in the circumstance.  Therefore, the fact that the Cabinet had consented to the Prime Minister in declaring the State of Emergency on 7 April B.E. 2553 (2010) is considered to be the use of executive power according to the specific law on the Administrative Organization of the State.  Thus, the fact that Defendant 1 issued Prime Minister Special Order No. 1/2553 appointing Mr. Suthep Thaugsuban, Deputy Prime Minister, to be the Director of CRES, and issued Prime Minister Special Order No. 2/2553 appointing Defendant 2 to be the superintendent of any serious operation, Defendant 2 had the authority provided by Article 9 (2) (3) of the aforementioned Decree to use imperative measures to remedy the emergency situation.

Even though Article 45 Article 15 paragraph 4 of the Constitution of the Kingdom of Thailand states that the prohibition of newspaper or other mass media to, entirely or partially, present news or express their opinion, or the intervention using any method to deprive the right and liberty under this Article shall not be done, except by virtue of the law specifically enacted for the purpose of maintaining the security of the State, etc.  But, the aforementioned Emergency Decree, a law enacted for the purpose of maintaining the security of the State under Article 45 paragraph 2, authorized Defendant 1 and 2’s actions to be considered as being with the boundary of the law.

As for Defendant 3, who was merely performing (blocking the Plaintiff’s website) as ordered by Defendant 2 relying on the authority of Defendant 2 that was also given by Defendant 1.  Defendant 3’s actions therefore were not considered to have injured the plaintiff.  The plaintiff is not entitled to ask Defendant 4 and 5, as State Agencies, to compensate for damages.  

The case is dismissed.

Signed by Judge Nattcha Noichuengwieng and Judge Chaiwat Tonwanatagul.

After the Court of First Instance rendered its judgment, Prachatai website, as the plaintiff, filed an appeal with the Court of Appeal.

21 December 2010
The Cabinet reached a resolution to revoke the Emergency Decree on Public Administration in State of Emergency in the four provinces left: Bangkok, Nonthaburi, Pathumthani, and Samutprakan, effecting from 22 December B.E. 2553 (2010) onwards.  Subsequently, the authorization to block the websites was terminated; however, Prachatai website, under the domain www.prachatai.com, was still inaccessible to all service providers/service users.

5 March 2013 
At the Civil Court, Ratchadapisek Road, Courtroom No. 703, at 9.00AM. The Civil Court was scheduled to deliver the Court of Appeal’s verdict.

Ms. Chiranuch Premchaiporn, as the attorney-in-fact of the plaintiff, and Mr. Teeraphan Phankeree, as the attorney, were present at the Court.  While the Defendants had the attorney-in-fact of Defendant 1-4, with an officer from the Ministry of Information and Communication Technology.  Defendant 5 was absent.

The Court of Appeal rendered its decision, dated 8 October B.E. 2555 (2012), summarized as following:
According to the complaint, the plaintiff affirmed that its website did not disseminate news and information that may cause fear to the public, or have the intention to distort the news and information that would lead to a misunderstanding to the point where it affects national security, public order or good morals of the people.  If the facts given by the plaintiff’s complaint are accurate then the plaintiff is entitled to file a lawsuit demanding compensation for any damage.

Therefore, the plaintiff is entitled to sue the Ministry of Information and Communication Technology as Defendant 4 and the Ministry of Finance as Defendant 5.  However, the plaintiff cannot sue Defendant 1, 2, and 3 as State Officers for wrongful acts while performing duties of office.

It is commonly known that at the present, the State of Emergency has already been repealed and the people can already access the plaintiff’s website.  Therefore, the issue that the plaintiff demanded the Court to dismiss the order that blocks the website is no longer useful for the Court to consider.

Altered the verdict to: the plaintiff’s complaint on Defendant 4 and 5 shall be accepted, and the Court of First Instance to re-try the civil procedures related to Defendant 4 and 5 as provided by the law.  

Signed by the Court of Appeal’s judges: Judge Niti Auejaratsapun, Judge Prapun Supsang, and Judge Rasent Ruengtaweep.

The judge panel in the Court of First Instance consisted of Judge Natcha Noichueiwieng, Judge Varintorn Muongmingsuk, and Judge Nattapong Tungsagon.

Scheduled to conduct the settlement of issues or the examination of witnesses on 27 May B.E. 2556