On 29 July 2021, Prime Minister General Prayut Chan-o-cha exercised his power under Section 9 of the Emergency Decree on Public Administration in Emergency Situation B.E. 2548 (2005) to issue Regulation issued under Section 9 of the Emergency Decree on Public Administration in Emergency Situation B.E. 2548 (2005) (No. 29) [Hereinafter “Emergency Decree Regulation (No. 29)”]. The Regulations prescribes in the following rules:
Rule No. 1: It is prohibited to report, distribute, or publish books, publications, or other types of media which contains messages that might frighten people or intend to distort information to cause a misunderstanding about the emergency situation to the extent that affects national security, public order, or good moral of the people in areas under a state of emergency.
Rule No. 2: In cases that the messages or information mentioned in Rule No. 1 are published on the internet, the Office of The National Broadcasting and Telecommunications Commission (NBTC Office) shall inform all the internet service providers with an operating license under the Act on the Organization to Assign Radio Frequency and to Regulate the Broadcasting and Telecommunications Services. All these licensees shall then investigate the IP addresses publishing such messages or information. If any operator found that any of such IP addresses are using their service, they shall provide required details to the NBTC Office and suspend the internet services for those IP addresses immediately.
The NBTC Office shall also forward the details received under Paragraph 1 to the Royal Thai Police immediately for taking further legal actions.
Any licensed operators who refused to comply with Paragraph 1 shall be regarded as failing to satisfy required conditions for obtaining a license for operating internet services, and the NBTC Office shall take appropriate legal actions in response. This Regulation shall take effect from 30 July 2021 onwards.
Thai Lawyers for Human Rights has the following observations about the Emergency Decree Regulation (No. 29):
Emergency Decree Regulation (No. 29) is inconsistent with the 2017 Constitution.
It is acknowledged that Section 9 (3) of the Emergency Decree grants the Prime Minister the power to issue regulations “to prohibit the press release, distribution or dissemination of letters, publications or any means of communication containing texts which may instigate fear amongst the people or is intended to distort information which misleads understanding of the emergency situation to the extent of affecting the security of state or public order or good moral of the people both in the area or locality where an emergency situation has been declared or the entire Kingdom.”
However, the determination of measures under Rule No. 1 of the Emergency Decree Regulation No. 29 must respect the principles of freedom of expression and freedom of media in presenting information enshrined in Sections 34 and 35  of the 2017 Constitution of the Kingdom of Thailand, respectively. Even though the Constitution provides that there might be some exceptions that could serve as a ground for restricting constitutional rights, such restrictions shall not limit individual freedom guaranteed under Section 26 of the 2017 Constitution unnecessarily and disproportionately .
Amid the current situation of the COVID-19 outbreak, the public health system could not adequately respond to the increasing number of patients. The people need to access accurate information, and the media are responsible for reporting information reflecting the reality, no matter whether such information may instigate public fear. Under the Emergency Decree Regulation, the authorities could exercise broad and subjective discretion when enforcing the ban
on disseminating messages that could frighten the people, thus leaving open the possibility of hindering the general public’s free expression and communication and the media’s undertaking of their work. The measures constitute an improper, unnecessary, and disproportionate restriction of rights. Therefore, the Regulation in question must be deemed as inconsistent with constitutional provisions.
Moreover, the measures on suspending internet services stipulated under Rule No. 2 violate the freedom of communication guaranteed under Section 36 of the 2017 Constitution . Should any information be in violation of the Regulation, the offense shall only concern that particular message. Not to mention, the provision authorizing the suspension of internet services in the aforementioned Rule overlooks a necessary step of investigation. The step typically requires a proper compilation of evidence and submission of a complaint to the Court. The Court would then examine the credibility of evidence and subsequently deliver an appropriate order.
Furthermore, the Regulation impacts not only other communications or pieces of information, which may not be linked to the problematic messages, but also other individual users who receive the same IP addresses when using the service at a different time.
These measures are determined through the authorities’ sole discretion without any judicial oversight and do not allow accused parties to provide explanations and present their arguments. Accordingly, they should be deemed as improper and unlawful, as well as unconstitutional.
2. The requirement for the NBTC Office to inform licensed Internet Service Providers to investigate suspected IP addresses and suspend their service usage interferes with the affairs of an independent organization.
Section 60, Paragraph 3 under the 2017 Constitution’s Chapter 5 on State Duties  states, “The State shall establish a State organization which is independent in performing duties to… prevent an act which results in obstructing the liberty of the people to know or preventing the people from knowing true and accurate data or information, and to prevent any person or any group of person from utilising the transmission frequencies without considering the rights of general public…” Under the Act on the Organization to Assign Radio Frequency and to Regulate the Broadcasting and Telecommunications Services B.E. 2553 (2010), Thailand has established the National Broadcasting and Telecommunications Commission (NBTC) with the responsibility to assign radio frequency and regulate relevant sectors, including telecommunication businesses, through overseeing the registration of licenses for internet service providers.
Accordingly, the NBTC holds status as an independent organization, which is not under the supervision of the Prime Minister by any means. The requirement binding the NBTC Office to examine IP addresses and suspend internet services under Rule No. 2 in Emergency Decree Regulation (No. 29), thus, constitutes an interference of the affairs of the NBTC as an independent organization. Ironically, this analysis shows that it is the State that restricts the rights and liberties to access information and, therefore, violates its duties stipulated in the 2017 Constitution.
3. Section 9 of the Emergency Decree does not grant the power to suspend internet services
In principle, any administrative act must be lawful, and the State’s decision to restrict people’s rights and liberties must have a clear legal basis. Still, Section 9 of the Emergency Decree  only authorizes six types of restrictions: ban on leaving one’s residence, ban on public assembly, ban on news reporting, ban on using transportation routes, ban on the use of buildings, and evacuation order. On the other hand, the law did not vest the Prime Minister with the power to examine IP addresses or suspend internet services.
As a result, any measures enacted under Rule No. 2 under the Emergency Decree Regulation will have no legal basis. Likewise, Rule No. 2 of Emergency Decree Regulation (No. 29) should also be considered unlawful.
Additionally, TLHR notes that the Prime Minister, on 27 April 2021, issued the Announcement on the Transfer of Ministers’ Powers To The Prime Minister (No. 3) in order to concentrate sweeping authority in his hands, including the power to enforce 31 laws. This Announcement was promulgated under the power granted by Section 7 of the Emergency Decree . Nevertheless, the Announcement does not enable the Prime Minister to assume the NBTC’s authority under the Act on the Organization to Assign Radio Frequency and to Regulate the Broadcasting and Telecommunications Services B.E. 2553 (2010); no provision under Section 7 of the Emergency Decree permits such a move.
Consequently, the prime minister could not exercise his power to suspend internet services, add any new conditions for maintaining an operating license for providing internet services, or revoke the permit if service providers fail to comply with his orders.
In conclusion, Emergency Decree Regulation No. 29 leads to restricting the freedoms of expression, communication, and the press and constitutes an interference of the independent organization’s affairs. Further, the issuance of this Regulation has no legal basis and is unconstitutional and unlawful.
TLHR calls for General Prayut Chan-o-cha to revoke this Regulation immediately. In order to overcome the current COVID-19 crisis, it is imperative to embrace the reality and come up with a collective solution. Concealing vital information and prosecuting people and journalists would only be counterproductive and could not help us end the pandemic.
 Section 34, Paragraph 1 of the Constitution: “A person shall enjoy the liberty to express opinions, make speeches, write, print, publicize, and express by other means. The restriction of such liberty shall not be imposed, except by virtue of the provisions of law specifically enacted for the purpose of maintaining the security of the State, protecting the rights or liberties of other persons, maintaining public order or good morals, or protecting the health of the people.”  Section 35 of the Constitution: “A media professional shall have liberty in presenting news or
expressing opinions in accordance with professional ethics.
The closure of a newspaper or other mass media in deprivation of the liberty under paragraph one shall not be permitted.
Censorship by a competent official of any news or statements made by a media professional before the publication in a newspaper or any media shall not be permitted, except during the time when the country is in a state of war.” Section 26, Paragraph 1 of the Constitution: “The enactment of a law resulting in the restriction of rights or liberties of a person shall be in accordance with the conditions provided by the Constitution. In the case where the Constitution does not provide the conditions thereon, such law shall not be contrary to the rule of law, shall not unreasonably impose burden on or restrict the rights or liberties of a person and shall not affect the human dignity of a person, and the justification and necessity for the restriction of the rights or liberties shall also be specified.”  Section 36 of the Constitution: “A person shall enjoy the liberty of communication by any means. Censorship, detention or disclosure of information communicated between persons, including any commission of an act carried out to know or obtain information communicated between persons, shall not be permitted, except by an order or a warrant issued by the Court or where there are other grounds as prescribed by law.”  Section 60, Paragraph 3 of the Constitution: “The State shall establish a State organization which is independent in performing duties to be responsible and supervise the undertakings in relation to transmission frequencies under paragraph two. In this regard, such organization shall ensure that there are measures to prevent unfair consumer exploitation or imposition of unnecessary burden on consumers, to prevent the interference of transmission frequencies, as well as to prevent an act that results in obstructing the liberty of the people to know or preventing the people from knowing true and accurate data or information, and to prevent any person or any group of persons from utilizing the transmission frequencies without considering the rights of general public…”  Section 9 of the Emergency Decree: “In the case of necessity in order to remedy and promptly resolve an emergency situation or to prevent the worsening of such situation, the Prime Minister shall have the power to issue the following Regulations:
- to prohibit any person from departing from a dwelling place during the prescribed period, except with the permission of a competent official or being an exempted person;
- to prohibit the assembly or gathering of persons at any place or the commission of any act which may cause unrest;
- to prohibit the press release, distribution or dissemination of letters, publications or any means of communication containing texts which may instigate fear amongst the people or is intended to distort information which misleads understanding of the emergency situation to the extent of affecting the security of state or public order or good moral of the people both in the area or locality where an emergency situation has been declared or the entire Kingdom;
- to prohibit the use of routes or vehicles or prescribe conditions on the use of routes or vehicles;
- to prohibit the use of buildings or enter into or stay in any place;
- to evacuate people out of a designated area for the safety of such people or to prohibit any person from entering a designated area.
Regulations under paragraph one may prescribe a time condition for the compliance of Regulations or conditions for the exercise of functions by the competent official, or authorize a competent official to designate an area and additional details, so as not to perform any act which causes unreasonable hardship to the people.” Section 7 of the Emergency Decree: “In an area or locality prescribed in a Declaration of Emergency Situation under section 5, powers and duties of a Minister, Ministry or several Ministries or having charge and control of the execution of any law or is empowered under any law, only in relation to the provisions on the issue of a permission, approval, order, command or aid in the prevention, remedy, suppression or withholding in an emergency situation or rehabilitation or provision of assistance to the people, shall be temporarily transferred as powers and duties of the Prime Minister in order that instructions and remedies during the situation can achieve in an integral, expedient and efficient manner.”