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.