【法律法规】INDECENCY ON THE INTERNET AS A CHALLENGE TO THAI LAW

来源：http://www.thailawforum.com/articles/indecency-challenge-thailaw.html

INTRODUCTION

           According to Section 287 of Thai Penal Code “Whoever (1) for the purpose of trade of trade or by trade, for public distribution or exhibition, makes, produces, possesses, brings or causes to be brought into the kingdom, sends or causes to be sent out of the kingdom, brings or causes to bring, or spreads by any means whatever, any document, drawing, print, painting, printed matter, picture, poster, symbol, photograph, cinematograph film, audio or video tape or any other thing which is obscene, (2) carries on trade, or takes part or participates in the trade concerning the aforesaid obscene material or thing, distributes or exhibits to the public, or hires out such material or thing; (3) in order to assist the circulation or trading of the aforesaid obscene material or thing, advertises or spreads the news by any means whatsoever that there is a person committing the act which is an offence according to this Section, or advertises or spreads the news that the aforesaid obscene material or thing may be obtained from any person or by any means, shall be punished with imprisonment not exceeding three years or fine not exceeding six thousand baht, or both.”

          In other words, Thai criminal law prohibits pornographic business and in doing so it is not different from many countries of this world (2). The nature of the Internet is such that no single country can efficiently suppress pornography without international cooperation in this area. This essay attempts to argue that neglecting this issue by enforcement officers can have a devastating impact on the whole integrity of Thai law. Further, it offers what can be done by the means of law in order to avert the great harm which can be caused by the spread of the pornographic plague. 

THAI CRIMINAL LAW AND PORNOGRAPHY ON THE INTERNET

       There are not many legal cases involving pornography on the Internet in Thailand, and so far none of them has reached the Supreme Court (3). There are, however, few decisions of the Supreme Court in relation to general application of Section 287 of Thai Penal Code which outlaws pornography. There are several weak points which make it difficult to apply Thai criminal law efficiently to suppress pornography. The first point can be clearly seen from reading Section 287 quoted in the introduction. Thai law prohibits production, distribution and possession of pornography for the purpose of trade only, although paragraph 2 of the Section can be interpreted in a broader sense. The Internet, however, is not only about trade. There is a lot of free materials being offered including pornographic. Law enforcement officers can, however, interpret for the purpose of trade in a broad sense so that to cover all websites which offer any services or goods not related to pornography and yet containing some free pornographic materials. However, the problem is that pornographic images are spread not only by the means of web sites but also by the means of unsolicited mails. Computer technology allows people to generate unlimited number of computer messages with pornographic images which can be send directly to every e-mail user. If those messages do not contain any trade purpose, Thai criminal law becomes powerless to provide a remedy. By this inability, the spirit of the law protecting against pornography is left without effect. Some countries have enacted anti-spam law which can remedy this situation, but Thailand does not appear have any anti-spam law so far. But even if such a law is being enacted in the nearest future, the problem would remain. The necessity to prove the trade purpose element of production, possession and distribution of pornography makes it more difficult to suppress the mass distribution of pornography on the Internet.

           The second point is that Thai penal code does not provide any definition what is obscene. This issue is left to prosecutors and courts to determine. The lack of clear standards of obscenity can hinder the efficiency of suppressing pornography in general and not only on the Internet. According to Thai courts, the standard of obscenity is contained in the characteristic of being ugly, indecent and shameful(4). In one case, it was held that if there is an attempt to make the lower part of the body dim or not clearly seen, then it cannot be characterized as obscene (5). In a more recent case, the Supreme Court held that “the picture of a woman which clearly displays her breast even though there is a cover on her sexual organ yet covering it in a provocative way, and who is also not in an appropriate and seemly position… is a picture which has an intention to tempt directly by awakening sexual lust; it is considered to be obscene according to the meaning laid down in Section 287(1)(6). This latter case contained several characteristics which can be taken into account when deciding whether there is an element of obscenity. These characteristics describe the behaviour which is not appropriate and unseemly. The decision uses also the terms ugly and shameful to characterize the nature of the picture. 

          Apart from the characteristics of what should be considered to be obscene there is an important principle related to the intention of the image: the image must contain an intention to temp directly to awake sexual lust. This principle has some inherent weaknesses. First of all, image itself can hardly have an intention. Intention is an act of will. Image is an object which does not have will. Consequently, one possible meaning of this judicial statement is that the one who produced, or distributed, or possessed such an image had an intention to tempt in order to awake sexual lust. If it is so it makes very difficult for the prosecutor to bring anyone to be judged because of the difficulty of proving the intention to tempt. It is likely, that the best interpretation of this provision is that the pornographic image has a potential to awake sexual lust. The latter interpretation has some resemblance with the standard of obscenity used in the past in the UK and the US further discussed. 

          Both the characteristics of obscenity and the potential to awake sexual lust have some weak points when applied to cyberspace. What is considered by a Thai judge as ugly, unseemly, inappropriate, indecent and shameful can be considered as the opposite by a US judge. Further, Thailand recently itself has experienced a dramatic change in sexual culture. What was shameful in the past is considered by many young people as a common and normal thing of today life. In other words, in the context of the Internet, which does not know national borders, the parochial standards of decency among Thai judiciary turn to be of little use.

 THE WESTERN STANDARD OF INDECENCY

       The Western standards of indecency used to be rooted in the Christian heritage. But this is true no more, particularly in the US, the biggest producer of pornography in the world (7). In the beginning the US law of obscenity followed an English law precedent. In 1868 an English case, Regina v. Hicklin, established a test that was ultimately adopted in the United States: If a work had the power to “deprave and corrupt those whose minds are open to such immoral influences,” it was obscene and therefore illegal. This old principle is based on the Christian principle of caring for other people, or as it is stated by Jesus: the greatest commandment is love your neighbour as yourself. 

          Eventually, the standard of Regina v. Hicklin has been gradually forsaken. It was completely abandoned in 1973, when the famous ruling on the case Miller v. California was made. In this case, the appellant was convicted of mailing unsolicited sexually explicit material in violation of a California statute. The trial court instructed the jury to evaluate the materials by the contemporary community standards of California. Appellant’s conviction was affirmed on appeal. The Supreme Court reaffirmed that obscene material is not protected by the First Amendment of the US Constitution which protects freedom of speech, and that such material can be regulated by the States, subject to the specific safeguards enunciated in the decision. Chief Justice Warren Burger established a three-part test for determining obscenity (8). It inquired whether (1) “‘the average person applying contemporary community standards’ would find that the work, taken as a whole appeals to the prurient interest”; (2) it “depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law”; and (3) “the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”

          When the Miller test is compared with the Regina v. Hicklin test, it is clear that it is more complex and depends more on what the judge or the jury perceive as community standards or serious literary, artistic, political, or scientific value. It leaves a wide loophole for pornographers to pollute the Internet by claiming that their abominations are of literary, artistic and so forth values. In any way, the Miller test will be unlikely suitable for Internet regulators, because it does not provide a clear guidance in this issue. It relies on the community standards of adjudicators. The standards will be enormously different in different parts of the world. What is perceived as of high value in Hollywood is a blasphemy to the Iranian government. 

 PORNOGRAPHY ON THE INTERNET AS A THREAT TO THAI LAW

          The described above inability of international and national laws to provide workable standards of obscenity or indecency in relation to the materials available on the Internet poses, first of all, a threat to good morals of every nation, including Thailand. This essay does not aim to present and explain the moral and cultural danger. It is obvious to many Thai people. What this essay attempts to do is to point at the threat to the whole Thai law which is often left unnoticed. The danger which comes from pornography on the Internet far exceeds the sphere of sexual morality. 

          The Internet has made it easy for people to access pornographic materials. They do not need to search for pornography. Pornography will find them. The threat for legal system comes not when pornography becomes freely available; the threat comes when people accept this easy availability as normal when law prohibits it. Pornography touches the foundation of the integrity of law. When the people access the materials which are illegal and access it easily and without hindrance, the law becomes an abstraction which has little to do with the reality. The efficiency of the law as a mechanism of social control is impaired. Law is not a computer. It has its own spirit and soul embodied in all those who make, administer and apply law in everyday life. The value of the habit of law abiding or acting according to law is difficult to overestimate. The nation with such habit is a truly free nation. A nation without such a habit will have to invest much in keeping an expensive mechanism of law enforcement, and even that mechanism will be subject to the plague of corruption.

          Law is a cultural phenomenon. Legal rules must and do reflect cultural values. Sexual decency is one of the most fundamental cornerstones of Thai traditional culture. Thai standard of decency does not allow even a partial exposition of naked body to the public. Those who have been to Thailand away from tourist beaches are often much surprised to see Thai families swimming in the sea fully dressed. The dress code in the East has much meaning. It is not simply a matter of fashion or a display of the individuality as it is in the West. It is a matter of personal honour and is the reflection of social status. Aggressive penetration of pornographic materials into Thai culture threatens more than the accepted standard of sexual behaviour. It threatens the basic ideas on social behaviour expressed through the dress code. The control mechanisms which present in the Western cultures are less developed in the East. Therefore, external social controls are taking a more significant role than in the West. Pornography undermines them, and by doing this it undermines the whole system of social control including law.

          Because of this indirect impact of the wide spread of pornography, the whole integrity of social system of control in Thailand is threatened. Where this system is broken once in an ordinary occurrence of every day life by an easy access to pornography on the Internet it can be and is broken on any other occasion. 

 WHAT CAN BE DONE IN THAILAND TO SUPPRESS PORNOGRAPHY ON THE INTERNET?

          Thailand alone cannot solve the problem of the flood of immorality on the Internet. There is a need for a unified international cooperation because of the nature of the Internet. Thailand, as a member of international community can propose an initiative for developing and applying international standards of indecency on the Internet. The fact that there is no one standard of indecency does not mean that there cannot be such a one, particularly limited to the information uploaded on and downloaded from the Internet. It is possible to develop one international standard of indecency which applies exclusively to the Internet, leaving the national states freedom to apply different standards outside the Internet.

          Developing an international standard of indecency requires from Thai lawyers to express that standard in rational forms rather than to rely on words describing feelings like being ugly or shameful. At the same time, it is of little help to compile catalogues of the images which are allowed and which are not with the detailed descriptions of all possible acts which can cause sexual lust. What lawyers need is a flexible standard of indecency which should fully express the spirit of anti-pornography laws – to protect family values, youth, and childhood.

          One does not need to wait for the politicians to agree on the international standard, the parliaments to ratify them, and the agreement to come into force. It will be too late. Thai lawyers must today seek this standard and apply it today. In the end, the real law is not the one which is in the books or on the paper, but the law which governs relationships in real life.

          The principle for developing standards of indecency as well as decency which is proposed in this essay is simple: “Love your neighbour as yourself.” In relation to indecency on the Internet it means that anyone who distributes any materials on the Internet must take care for the wellbeing of those people who will get access to those materials. This principle does not say precisely which image should be considered as pornographic or not. What it does say that the image which is posted on the Internet must be evaluated in terms of benefits and harms it can possibly cause. If there is a likelihood that this image can corrupt morals of people in whatever part of the world, there is an obligation not to make it available on the Internet. How can this principle work in practice?

          It appears that the principle love your neighbour did work in British tort law in the past (9). But it requires the able judges, lawyers and in criminal law cases, prosecutors. This principle goes against the current trend of law to reflect all the complexity of legal relationships in a set of precise instructions. The Internet with all its cultural diversity defies this trend. Anyone who would attempt to impose a rigid set of standards on the Internet will fail. Moreover, those rigid standards threaten the nature of the Internet itself based on the freedom of expression. What the Internet needs are the responsible users who have conscience and act according to conscience. Therefore, the principle of love your neighbour as yourself can work only where there are conscientious users and enforcement officers.

          The efficiency of the principle of love your neighbour as yourself will depend on the educational campaign directed at all the Internet users. Law in this aspect must assist in promoting decent content of the Internet. The Internet needs ethics as the living organisms need oxygen. One must understand that pornography is against love. It kills love and replaces it with an animal lust. It threatens family fidelity. It teaches a completely wrong thing about love: that it is about body and taking carnal pleasure. But the true love is about soul, and about giving yourself to others.

          The duty of loving one’s neighbour in the Internet context falls first of all on the distributor of the materials, and on those who can control the content of the Internet, like the ISP (Internet Service providers), search engines. It also falls on the law enforcement officers. This principle, when accepted by conscience of people can be a powerful weapon against the spread of indecency on the Internet. The principle of love your neighbour as yourself can give a variety of standards of decency and indecency. It does not automatically determine a particular content of those standards. But it determines how those standards are sought after and applied. It guarantees continuity and flexibility which will make law on indecency relevant to the pace of the development of the Internet. The principle of love requires lawyers to examine the content of the Internet materials not whether they are ugly, or unseemly, or shameful in themselves. The principle looks at the influence of the materials on the wellbeing of the people, their health, and relationship with other people. In other words, love your neighbour provides the method, or process of finding the appropriate standards in a particular context. But this principle can work only where there are lawyers who have love in their heart.

         There are several practical recommendations which naturally flow from the principle of love one’s neighbour. Loving people requires protecting people. Schools, universities and all public and private institutions in Thailand must be obliged by law to install filters which can prevent a large amount of indecent materials. The government must financially support development and distribution of protective software. The ISP and the Internet searches based in Thailand must be obliged by law to censor and prevent communication of the materials which, they believe, are indecent. There is already High-Tech Crime Center as a police unit in Thailand which is responsible for the cleaner content of the Internet. Every Internet user in Thailand can report a web site which contains pornographic materials (10). 

          There must be an active prosecution of those who spread indecent materials on the Internet from Thailand, and Thai government can employ international criminal mechanisms to request from other countries taking appropriate measures to suppress activities which harm Thailand. There are international obligations for all countries not to allow their territory to be used for doing harm to other countries. There are international laws (11)which any country can use to suppress pornography. What Thailand needs is a firm international policy directed to protect good morals and wellbeing of Thai nation.

CONCLUSION

          The pornography on the Internet poses a challenge before Thai criminal law. It is not enough to provide sanctions against the commercial distributors of pornography. Apart from penal function, Thai criminal law must increasingly rely on educative function of law. But to do that, they need lawyers which are able not only to punish, but also educate. Therefore, the challenge is more than in relation to Thai criminal law system. The challenge is before the whole system of Thai legal education. What in the end matters are not law students who know the sections of Penal Code, which will be changed anyway, what matters the most is to have lawyers of moral integrity, honesty and care for people.

          To protect the integrity of their law and culture from the attack of immorality on the Internet, Thai lawyers have no choice but to be actively engaged in the search of the universal standard of indecency which is based and corresponds to their cultural heritage. Thai law must rediscover and recover its national roots to be able to withstand in the troublesome age of information technology where old moral values are questioned. The goodness of those values needs to be rediscovered, and this rediscovery is possible only through facing the cultural and ethical diversity found in the world of the Internet. The Internet poses three options for Thai law. First, Thai lawyers as well as the whole nation will lose their cultural identity. Second, there will be a violent reaction against the whole culture of the Internet. Third, Thai people will preserve and enrich their culture through a dialogue with the rest of the world. There is no much need to speak for the preference of the third option.

          In the past, Thai lawyers were receivers. Today, Thai lawyers can give to the world, what the world need – the standard of what is decent and what is not. The West can hardly do it because it lost its ethical roots. Thai lawyers can find the standard of decency in the spirit of Buddha’s teaching, not as it has been diluted in a ritualistic religion, but as it has been expressed in the precept of loving-kindness – metta-garuna. This loving-kindness has the same meaning as agape – love in the teaching of Jesus Christ and jen – benevolence in the teaching of Confucius. This unity of metta-garuna, agape and jen gives contemporary lawyers a hope that there can be one universal moral principle appealing to the overwhelming majority of the Internet users, and enforceable by law in relation to the decency of communicated through the Internet materials. Much of the Internet nowadays is driven by greed and lust. The Internet is a battlefield for the minds of the users. The main challenge for the people of good will is to make the Internet a medium to promote the universal ethical values upon which the human civilization is based