New Guideline for Online IP Infringing Content in Thailand
Tanakrit Tangburanakij & Praewpan Hinchiranan, Baker McKenzie (Bangkok Office) (Thailand)
In 2017, the Computer Crime Act, which is a law that criminalizes certain types of online activities, including unauthorized access to computer data, scamming, phishing, etc., introduced section 20 with the aim of reducing incidents of online infringement. This provision is one of the many tools available to the injured party to combat the problem of online infringing/unlawful content in addition to the existing laws, i.e. the Penal Code, Copyright Act, Trademark Act, etc. Specifically, it empowers qualified officials to petition to the courts to block computer data that infringes upon, among others, national security, lese majeste, anti-terrorism, and IP. In the event that the court grants such a petition, that official may independently take steps to enforce the block while also compelling service providers to assist in the effort.
In the past few years, the Computer Crime Act has been used as an ex-parte proceeding by the competent officials as a tool to file a petition to the court to grant a takedown or blocking order of websites that may contain infringing/unlawful content. If the court order is granted, the competent official will then use this basis to issue its own order to the service providers for compliance.
However, the Criminal Court has recently provided guidelines in relation to issuance of takedown/blocking orders under the Computer Crime Act. The guidelines include the following:
- Instead of an ex-parte proceeding, the notice will be served on the service provider within 7 days of the competent official filing a petition, in order to allow the service provider the opportunity to object or argue against the said petition;
- The notice will contain the name of the complainant, the name of the service provider, website (URL) and date of hearing;
- The notice will be served on the service provider via electronic means only;
- The service provider can request for an extension or postponement of the hearing;
- The service provider is allowed to provide evidence to support their objection or argument;
- If the service provider does not attend the hearing, the said service provider will not have a chance to object or argue against the petition, and the court will continue with the ex-parte proceeding.
Based on the Criminal Court’s guidelines above, it would certainly be beneficial for service providers to have the available mechanisms to object or argue against the takedown or blocking order issued to them. However, since the time frame to comply with the order is constrained, it is advisable to appoint an authorized agent or representative in advance to respond to the notice and/or order on behalf of the overseas service provider within the provided time frame.