Online transactions are dominant in every industry sector, both public and private, and all industry leaders around the world are focused on this type of transaction due to the relative efficiency and ease of use. As our ability to receive goods and services online continues to grow worldwide, our economic policies have to reflect that. At this juncture in the Kingdom of Thailand, this can also be felt from the current policy of the government that would like to move the country forward with the initiative termed “Thailand 4.0”.

At the point when online transactions began to grow in such popularity and took the place of more traditional methods of transactions, many in the online community sought out advantages due to the wide-open landscape and the lack of a legal framework from this resources by conducting violations against many IP right’s owners, one of them are copyright owners, via online tools. A very good example that has become so common in the online marketplace is that of infringers uploading copyrighted works such as music thru the online platform where they then earn money from the sale of such uploaded songs at a much cheaper and discounted price. Actions such as these create massive damage to the music’s owner’s revenues.

The Thai government, from civilian agencies to military branches, have attempted to thwart infringers while being proactive in their attempts to suppress this kind of action. Rather than focusing on the suppression of the infringing action in order to eliminate the damage of copyright owners, another issue which has been raised in this case is in relation to the persons who are in the middle position between the copyright owners and infringers. Such intermediaries provide internet and/or platform systems for uploading content including content in violation of the law. However, it does not mean that those persons are intentionally supporting such types of infringing action. Rather, they somehow do not know that such kinds of content have been uploading via their internet systems or existing in their platforms. This problem has been argued for a long period of time as to whether the internet or platform providers are considered as one of infringers in such cases.

Finally, the amendment of The Copyright Act (No. 2) B.E. 2558 (2015) (the “Amendment No.2”) has been promulgated. One of the important provisions provided in this Amendment No. 2 is in relation to the matter which has been known as “The Takedown Notice Provision”. This came from the provision of Title 17 of the US Code called “The Digital Millennium Copyright Act”.

Such a Takedown Notice Provision specified in the Amendment No.2 is as follows:

“Section 32/3 In cases where there is reliable evidence showing that there is a copyright infringement in the computer system of a service provider, a copy right owner may submit a petition requesting the court to order the service provider to cease such copyright infringement.

For the purpose of this section, a service provider means:

• A person who provides to another person a service enabling the service recipient to access the internet or to connect with other persons by other means via a computer system, regardless of whether the service is provided under the name of the service provider or under the name or for the benefit of another person;
• A person who provides a service to store a database for another person’s benefits.

The petition under paragraph one shall have explicit details about the information, the evidence and the relief sought as follows:

• Name and address of the service provides;
• The copyright work that is alleged infringed;
• The alleged infringing work;
• The detecting process, date and time when the act was discovered as well as act committed or circumstances including evidence relating to copyright infringement;
• Damage that may occur from the alleged copyright tight infringement;
• The request to order the service provider to remove the infringing work from the service provider’s computer or to suppress copyright infringement by other means.

Upon receipt of the petition under paragraph one, the court shall hold an examination. If the court holds that the petition is completed as specified under paragraph three and if there are necessary grounds for the court to approve the petition, the court shall order the service provider to cease said infringement or remove the alleged infringing work from the computer system of the service provider for the period of time prescribed by the court. The court’s order shall be enforced against the service provider immediately and shall be notified to the service provider without delay. In this regard, the copyright owner shall file legal proceedings against an infringer of copyright within the period of time ordered by the court to cease the alleged infringement or remove the alleged infringing copy from the computer system.

In the case where the service provider is not a person controlling, initialing, or ordering alleged infringement in the computer system of the service provider and as such the service provider has proceeded with the court’s order as prescribed under paragraph four, the service provider shall not be liable for any alleged infringement occurring prior to the issuance of the court order and after the expiry of the court’s order.

The service provider shall not be liable for any damage arising from implementing the court’s order under paragraph four.”

Based on the above provision of Section 32/2, it is considered as one of the exemptions for the internet or platform provider from the infringement accusation if it is proved that they are not the persons who control, initiate or order alleged infringement activities and that they follow the court order by taking down such infringing contents from their system.

However, Section 32/3 prescribes that before the court orders each internet or platform provider to take such content down, the petitioner (copyright owner) is required to submit its petition which contains the information as mentioned in Section 32/2 including the name and address of the specific service provider. In the online community, some of the copyright owners may not know who is the person that owns the internet service or owns the online platform or even if they know who that person is, they may not be able to find that person’s address. This condition may create difficulty for the copyright owner to exercise its right under this Section 32/3. This condition may also make this provision less unenforceable. As a matter of record, just a few copyright owners were qualified to resort to Section 32/3. Due to such difficulties, the Government needed to find a better solution. That is why the Computer Crime Act is currently playing such an important role in making the cyber community cleaner and somewhat less restricted to enforce such actions.

After the Amendment No. 2 had been promulgated and come into effect, the Amendment to The Computer Crime Act No. 2 B.E. 2560 (2017) (the “CCA No.2”) came into effect and within it contains a provision which seems to solve this problem.

The above stated provision of the CCA No.2 is as follows below:

“Section 20 When there is an action to disseminate computer data as follows, the competent official, with the approval from the Minister, may file a petition with supporting evidence, to the court of jurisdiction, for a court order to suppress the dissemination or to remove such computer data from a computer system.

• Computer data actionable per this Act;
• Computer data which may compromise the security of the Kingdom as prescribed in Chapter 2 Title 1 or Title 1/1 of the Penal Code;
• Computer Data which is a criminal offence according to the laws related to intellectual property or other laws, where such computer data is a breach to the public order or good moral of the people and the law enforcement official or the inquiry official according to the Criminal Procedure Code has made a request.

When there is an action to disseminate computer data which is deemed to be a breach to the public order or good moral of the people, the Minister, with the approval of the Computer Data Screening Committee, may be authorized by a competent official to file a petition with supporting evidence to the court of jurisdiction for a court order to suppress the dissemination or to remove such computer data from a computer system. The meeting of the Computer Data Screening Committee shall be governed by provisions on the committee authorized to carry out administrative procedures under the administrative procedures related to the law mutatis mutandis.

The Minister shall appoint one or more of Computer Data Screening Committee under Paragraph Two. Each committee shall be consist of nine members, three of whom must come from the private sector in the field of human rights, mass communication, information technology, or other relevant fields. The committee members shall be remunerated as per the criteria prescribed by the Minister with the approval from the Ministry of Finance.

The act of the court under Paragraph One and Paragraph Two shall be guided by the Criminal Procedure Code mutatis mutandis. When the court issues an order to suppress the dissemination or to remove such computer data under Paragraph One or Paragraph Two, the competent official may suppress the dissemination or remove the computer data themselves or instruct the service provider to suppress the dissemination or remove the computer data. The Minister shall issue a Ministerial Notification prescribing the criteria, duration and procedure to suppress the dissemination or to remove the computer data, for the competent official and service provider, and they shall be made compatible to each other, with the consideration of the changing technology development, unless the court had instructed otherwise.

In case of necessity and emergency, the competent official may file the petition for a court order according to Paragraph One before obtaining any approval from the Minister and the competent official with approval from the Computer Data Screening Committee may file the petition for the court order per Paragraph Two before obtaining any authorization from the Minister, but it is obliged that they urgently bring the matter to the attention of the Minister.”

Under the above provision of Section 20 of the CCA, the officials themselves, in this case are officials from the Ministry of Digital Economy and Society, and as such have the authority to submit their petition to the court requesting for the court’s order to remove the infringing contents. There is no need to have the owners of such contents submit the petition themselves. The provision of Section 20 also governs to not only the copyright items, but also all intellectual property is covered which gives broader protection to all intellectual property’s owners. Moreover, the officials in this case once after receiving the court’s order have the authority to remove such contents themselves. Therefore, this provision is able to solve the problem stated previously especially in terms of not knowing who the internet or platform providers are or their whereabouts.

Even when there are provisions to protect the intellectual property owners and also the exemption of infringement provisions for the intermediary persons, it has been further questioned whether such provisions will be enforced efficiently and that those will be applied for the hyperlinks shown in the service provider platforms and that those links in which is contained the infringing

Panisa Suwanmatajarn
Partner