Thai junta’s new censorship bill the first to define right/wrong sexual acts

The Prevention and Suppression of Temptations to Dangerous Behaviors bill which will ban specific kinds of pornography in a bid to increase efficiency in suppression, potentially paves way for a ban of group sex, bondage and discipline, dominance and submission, and sadomasochism (BDSM) in the name of public morals. The bill also poses a great threat to media freedom as it not only broadly defines a wide range of media content deemed inappropriate, it also adopts the notorious article of the Computer Crime Act which indiscriminately holds internet intermediaries liable for all pornographic/violent materials without safe harbour.

Not that Thailand has no laws banning pornography. Article 287 of the Criminal Code bans the trade in objects deemed obscene and Article 14 (4) of the Computer Crime Act bans the import into a computer system of any pornographic data.

In the draft, it is stated that the bill is principally structured to get rid of child pornography and to safeguard children from being induced to commit wrongdoing in accordance with the Convention on the Rights of the Child, which Thailand has ratified, and to increase efficiency in suppressing pornography. However, the vague wording of the proposed law could mean that forms of art and media which are erotic or deviant, violence, and drugs will be banned.

The bill therefore is aimed at prosecuting those who produce, trade, distribute, and publish obscene or violent "materials which induce dangerous behaviour."

The bill defies "materials which induce dangerous behaviour" as any publication, printed matter, photographs, films, messages, data or anything which encourages or induces the following:

  1. deviant sexual behaviour
  2. sex with children
  3. cruelty against children
  4. suicide of children or group suicide
  5. illicit drug usage
  6. commission of the following crimes: terrorism, robbery, theft, murder, assault

It then explains that “deviant sexual behaviour” is

  1. sex between parents and children
  2. sex between people who share at least one parent
  3. sex with physical violence, especially using implements
  4. forced sex
  5. group sex
  6. sex with animals
  7. sex with corpses

If passed, the Prevention and Suppressionof of Temptations to Dangerous Behaviors bil will definitely outlaw hundreds of movies and TV series, especially from Hollywood, such as Fifty Shades of Grey, the popular Hollywood movie based on the novel of the same title in which the main protagonists engage in BDSM practices. At present, without the law, Amarin Publishing House has already censored some erotic scenes of the Thai translation, saying that the contents are “too excessive to be presented in Thai society”.

Jompon Pitaksantayothin, a law academic from the University of the Thai Chamber of Commerce who is an expert on laws related to child pornography, said the bill can be called discrimination against people with certain sexual orientations and violates freedom of expression. “This is merely expression related to sex. When the state tries to control this, suppress this, is it the state’s business?”

“Deviant? How do you judge? It’s the people’s sexual orientation. Is it OK to force people’s sexual tastes by law?” asked Jompon.

The law academic said currently group sex and BDSM with no physical assault are not criminalized, but when they are recorded or they become videos, they will be illegal. “And to some people, anal sex is perverse, so do the law drafters think this is normal then? You can see there are so many gaps in this bill.”

He added that in fact Thai law criminalizes all kinds of sexual objects and pornography. It would be more logical if the Thai authorities decriminalized pornography and sexual objects and then make exceptions.

For Lakkana Punwichai, aka Kampaka, a TV personality and controversial critic on gender and politics, the bill seems to care more about imposing a defined set of morals on society rather than freedom of expression.

The administrator of the popular satirical anti-establishment Facebook Page called Hod Sad V2 said the bill seems to be very broad and the application of the bill is likely to cover large areas of life. “I think it’s a private taste, it seems that they are trying to brand others who consume media that they prohibit as bad people. But in fact, it’s more to do with personal taste, isn’t it?” added the satirical Facebook page administrator, who did not reveal his real name.

Article 18 of the bill stipulates that anyone who, for the purpose of distributing and showing, produces and possesses material that could induce people to perform unlawful sexual acts and other criminal behaviour could face one to five years imprisonment and a 100,000-500,000 baht fine. There are exceptions for research and medical purposes.  

Article 19 stipulates that whoever distributes or shows such materials will face the same penalty as offenders under Article 18. The distributors, however, will have to serve 1.5 times the jail terms of Article 18 if they distribute the materials on a computer system.

Any cinemas or hotels showing such material will face de-licensing.

Jompon said the jail terms in Article 18 and 19 are unproportionate and too severe. He also questioned the intention of the bill. "The principle of the bill is to protect children, but in the end why does the law also prohibit adults from watching these materials?" he asked.

The law was drafted by the Social Development and Human Security Minister as part of the controversial Digital Economy bills which were approved in principle by the junta late last year.

Internet intermediary liability

Another great threat to freedom of expression of the bill is Article 22, which stipulates that any internet intermediary who knows that there are, in a computer system under their control, materials inducing dangerous behaviour, but does not immediately remove or delete such materials, must serve a jail term of up to five years or pay a fine up to 500,000 baht, or both.

This is considered worse than the notorious Article 15 of 2007 Computer Crime Act (CCA), in which intermediaries have to serve jail terms if it is found that they “consent” or “encourage” such posting. The amended CCA, expected to be deliberated by the National Legislative Assembly (NLA) soon, has removed this part, and replaced it with a notice and takedown procedure.

“This is too severe. If the bill is applied as it’s written, where the intermediaries have to delete the material immediately, it will put a heavy burden on the intermediaries,” said Jompon  

Searches without warrant

Article 14 (2) allows the police to search the body of a person and vehicles without a warrant when they suspect that the person or vehicle is carrying illegal material. The search of places still needs a court search warrant.

The law academic said this definitely violates the right to privacy.

Just imagine you’ve downloaded a bit torrent file of Fifty Shades of Grey in your laptop and carry it around; if searched, and found guilty, you have to face at least one year in jail.