Using the Computer Crimes Act as a Weapon Against Online Counterfeit Sales
By John Fotiadis and Tisha Tichachad Yingluecha
The Computer Crimes Act B.E. 2550 (2007) (“CCA”) was enacted with the general purpose of bringing enforcement of Thailand’s law to the internet and, more generally, to the transfer of electronic data within Thailand. Since its enactment, the CCA has proved a more than effective tool for police enforcement. The most publicized application of the CCA has been for the enforcement of Thailand’s Les Majeste law. However, this has not been its exclusive use.
The CCA has been used to enforce Thailand’s laws against illicit pornography and its distribution, including most famously its use by police in 2008 to compel ISPs in Thailand, as well as YouTube, to drop video clips secretly taken by camera phone of female music group Four-Mod in the shower.
The CCA has also been used to enforce criminal laws of libel and defamation on the web, similar to the case some years back of a male student who posted a note on a web bulletin board, listing the phone number of a young woman and a message alleging she was a student prostitute.
Most recently in 2009, the CCA was used to enforce against the dissemination of false data endangering national security. This was in the case of the Thon Buri doctor and brokerage employees who were charged with spreading false rumors concerning the health of the King of Thailand.
The above examples are evidence of the multiple avenues afforded by the CCA for expanded enforcement of other laws into the arena of the internet and, more specifically, against ISPs.
Our query here--can the CCA be expanded to also be used as a tool to enforce against web sites and their ISPs which sell counterfeit products that infringe IP rights whether they be in the form of patent, copyright or trademark?
Today, many traders of counterfeit products seek to avoid prosecution by moving their retail operations online. By setting up websites with foreign ISPs, making sales through electronic transactions, and shipping products by post, these high-tech counterfeiters effectively avoid enforcement by operating outside the jurisdiction of the country in which they sell.
What’s worse, honest buyers are more readily tricked into purchasing counterfeit goods in this manner. When buying online, they are not afforded the opportunity to physically examine the goods to see that they are genuine and must rely on the representations of the online store operator (both in written guarantees of authenticity and as presented by photos of the items for sale). Moreover, a well-designed web site can easily fool an innocent buyer into believing that the operator is an established business, and can therefore be trusted to deliver the genuine article.
While the CCA does not contain an express provision incorporating the enforcement of Thailand’s IP laws on patent, trademark and copyright, CCA Section 14(1) does broadly prohibit the publication of false data which may cause injury to a third party:
Section 14. If any person commits any offence of the following acts they shall be subject to imprisonment for not more than five years or a fine of not more than one hundred thousand baht or both:
(1) that involves import to a computer system of forged computer data, either in whole or in part, or false computer data, in a manner that is likely to cause damage to a third party or the public;
The CCA’s definition of computer data is broadly defined to include all data or electronic information, including photographs and video. Therefore, false representations of authenticity by web sites selling counterfeit goods and the publication of photos of counterfeit goods made to look like genuine items may very well fall within the ambit of CCA Section 14(1). It also seems clear that counterfeit web sites undoubtedly cause damage to third party buyers tricked to pay more for copied goods, and brand owners whose reputations are damaged as result.
Taken further, ISPs who host such web sites may also be equally liable to criminal prosecution pursuant to CCA Section 15:
Section 15. Any service provider intentionally supporting or consenting to an offence under Section 14 within a computer system under their control shall be subject to the same penalty as that imposed upon a person committing an offence under Section 14.
Indeed, it is enforcement against ISPs that provides the CCA the most influence in battling online counterfeit sales. Counterfeit operators can easily register web sites under false names, close up shop and reopen under new web sites overnight. By threatening action under CCA Section 15 against the ISPs who host these operators, the ISPs would likely self-enforce in closing down illegal operators once they are brought to the attention of the ISP. That is because ISPs who refuse to take action voluntarily once notified by police or by the injured parties directly run the risk of being found guilty themselves as co-conspirators under Section 15. Even in situations where the ISP is unconcerned about criminal liability in Thailand, the police can obtain a court warrant blocking the web site in Thailand through local ISPs.
Police Lieutenant Colonel Kissana Phathanacharoen (Ph.D), Royal Thai Police, a legal expert with the police concerning matters of IP infringement in Thailand a consultant with the Atherton law firm in Bangkok, agreed with the argument that in the proper circumstances and with appropriate evidence of counterfeit sales being conducted by an online web site, CCA Section 14(1) and 15 can provide the basis for taking down counterfeit websites in Thailand.
Perhaps an example for Thailand to follow would be that of the Federal District Court of California, Northern District in the case of Louis Vuitton v. Akanoc Solutions, Inc. et al (No. C 07-03952 JW). In that case, the ISP Akanoc was found guilty and liable to pay US $32.4 million for hosting one or more web sites that it was or should have been aware had been selling counterfeit Louis Vuitton goods online. Louis Vuitton had succeeded in obtaining a US $63 Million judgment against EBay a year earlier on similar grounds.
In the Louis Vuitton decision, the US Court’s critical findings were that “posting photos of counterfeit goods constitutes direct copyright infringement”; and that the ISP “continued to host those [infringing] websites despite receiving notice from the Plaintiff of particular websites that engaged in such conduct”.
The US Court relied exclusively on common law to hold the ISP guilty as a co-conspirator for the infringing sales of the web site operators. Here in Thailand, CCA Sections 14(1) and 15 provide a statutory basis for imposing not only civil liability in the form of damages, but also criminal liability.