ALSA TU - The Legal NewsletterALSATU
โพสต์นี้มีเนื้อหาที่อาจไม่เหมาะสมกับเยาวชน Should sex creators be legalised in Thailand?

  • BEING A CONTROVERSY  IN THAILAND

        Sex creator is the definition of one who creates content about sexuality and substances by photographing themselves in the nude, recording themselves while having sex, etc. People exactly want to see and watch those content about sexuality so they pleasantly pay the fee to access the content. The fee mostly is the monthly fee and the yearly fee depends on customers’ contentment directly supporting and following sex creators’ content.

        According to the previous paragraph, the sex creator role is the most mentioned topic and is a controversial topic now in Thailand. From the big news, arresting a sex creator named ‘Khainao’ in an offense with a criminal sentence. Formerly, Khainao was the sex creator who created sexual content such as filming her while having sex with her boyfriend on the Onlyfans, which is a website and an application that the creator could upload their private video including sexuality video. The visitors have to pay the fee for the sex creator they choose to support to access those contents and the fee is definitely owned by the sex creator.

        Even being a sex creator seems to be one of the alternatives to making a high income. However, Thailand is well known as a conservative country that people here strongly conserves culture, tradition, religion, etc. Therefore, some people here in Thailand could not accept and agree about sex creators.

     

    CONSIDERING THAI LAWS

        First of all, sex creator has not been legalized in Thailand yet. Being a sex creator that creates sexual content by photographing the nude, filming the sexual video, etc. Those acts that we mentioned seem to be an offence relating to using pornographic for the purposes of commercial and trade following Section 287 of Thailand criminal code B.E. 2499. Following the Section 287 of Thailand criminal code, B.E. 2499 prescribing with its concept called “adult and alone” which is personally keeping pornographic is lawful if the keeper is sui juris.

        For the amendment process, we should definite the word “sex creator” unrelated acts and laws. Thailand criminal code B.E 2499 should be amended by adding “unlawfully” or “not in the name of the sex creator who owns that contents”. Furthermore, we believe that Section 287/1 and 287/2 should not be amended or declined because we take the children’s protection the most as we should do. In case that children do not have sufficient responsibility and substances to do or to be sex creators.

        The Computer-related Crime Act B.E 2550 (2007) Section 14, was legislated that any person who commits the following offenses shall be subject to imprisonment up to five years and a fine not exceeding one hundred thousand baht, or both : (4) put into a computer system any computer data which is obscene and that computer data may accessible by the public ;

         Sexcreators post pornographic pictures and sex video clips on the internet or any application wherewith people can approach that would be considered as put into a computer system may be accessible by the public under the law section 14. 

         Copyright act B.E. 2537 (1994) legislates about copyright works according to Section 6. of Copyright act B.E. 2537 (1994) which section 6. was prescribed that Copyright works by virtue of this Act means works of artistic, audiovisual.

         Sexcreators post obscene pictures and many sexual clips on social media or online applications such as Onlyfans. A photo can be artistic work in the type of photographic work following section 4. in this act (5) “photographic work means a creation of images with the use of an image-recording equipment allowing light to pass through a lens or a piece of glass or with any process that creates images” Because from this meaning can use with a digital camera so that sex creator apply it for picture-making.

         Moreover, video clips could be able to audiovisual work in accordance with section 4.“audiovisual work means a work consisting of a series of images recorded on any kind of materials and capable of being replayed with an equipment necessary for such material, including the sounds accompanying such work if any;  Since video clips have images recorded and sound effects on phone or computer wherewith able to replay. Both works have rights as the owner of copyrights following section 15.

         Although pictures are artistic work and video clips are audiovisual work. However,  pornographic photos and sexual intercourse clips are against the law section 287 of Thailand Criminal Code B.E. 2499 (1956) that those works cannot be protected by Copyright act B.E. 2537 (1994). Consequently, if someone copy or adapt their works, sex creators cannot charge them.

     

    WHAT IS ACTUALLY A PROBLEM WITH  THIS CONTROVERSY?

           If we take a look at the comments among ‘Khainao’ controversial news. We will see so many Thais strongly arguing with each other due to the different attitudes. Whether we should focus on Thai’smorals or Rights to the body of Khainao herself. Both sides of those netizens(internet + citizen) are showing us their logic to support their ideas. Those who believe in Thai’s morals said that we should be focusing on the virginity of women. Thai women must be very reserved and prepare their bodies to be virgins before marriage or some of them are focusing on how ashamed of their family is.

         However, those who believe in The rights of the body of ‘Khainao’ herself. They said that the thing that we should focus on is THE RIGHTS that also come with FREEDOM. Therefore, the Onlyfans account of ‘Khainao’, there’s nothing wrong with it. If we really think about it, those tapes have been created with both of their consent. Which are the consent of her and her boyfriend. Moreover, as a human in the 21st century. Rights and freedom are the basic principles that have been accepted worldwide. After that, her boyfriend and herself have the right to do anything that they wanted to do with their body. You can see that her decisions have no harm to anyone. Why Thais netizens are so upset about it? Besides those interesting netizens' comments. we also have to take a look at Thai’s legislation and regulations because this is the time that LAW could end these disputes and the objective of the law is to contain peace and public orders.

         According to the related laws that we have mentioned, Thailand criminal code B.E. 2499,  Computer-related Crime Act B.E 2550 (2007), Copyright act B.E. 2537 (1994), those laws are actually prescribed for those kinds of action in the Act, code, etc. If we compared the sex video of ‘Khainao’ to the  Copyright act B.E. 2537 (1994)Section 6, we should see that pornographic content such as nude pictures and sex videos or anything familiar to it, could be considered as a “photographic works” (which is a subheading of “artistic work” in this act) or “audiovisual work” that has protection under Copyrightact B.E. 2537 (1994) act? Could we treat sex content as another creative thing that should have been protected by the laws? For the reason that the definition of “photographic works” is and means the creation of images with the use of image-recording equipment allowing light to pass through a lens or apiece of glass or with any process that creates images” and “audiovisual work” means a work consisting of a series of images recorded on any kind of materials and capable of being replayed with the equipment necessary for such material, including the sounds accompanying such work if any; and if we are considered sex content as a creative thing that should be protected under the law. Then what's the problem? We have to take a look at another BIG problem here. Which is Thailand criminal code B.E. 2499 and Computer-related Crime Act B.E 2550 (2007)

        These are the real problems here. Did we guess? Maybe? Because the criminal code is quite old law as you can see. It has been published since 2499B.E. Which we think that it is unarguable that some customs or some reason behind those laws doesn’t suit the present time. As we mentioned that we have two sides to the story. The netizens who believed in Thai’s morals actually have the same logic as the Thailand criminal code B.E. 2499 which valued something like, traditional THAIS preach. We’re in the age that “sex” is a private conversation or we can say that it is unacceptable if we take this topic publicly. Also, this logic also applies to Computer-related Crime Act B.E2550 (2007) too. Even this act are published and enforced in 2007. Therefore, we could say that even times have changed but the logic still remains.

              

    IS IT  SUCH A PROPER TIME TO LEGALISING SEX WORKERS ROLE IN THAILAND?

         Our guidance, Commentary. Sex creator or sex contents should be legalized and have to be recognized in Law belongs with the protection as same as the creation of the creator under intellectual property legislation. However, ought not to violate the third person rights and freedom also with the creator and viewer. In this case, we didn’t mean that everything shall be “unlimited freedom”. In another hand, We suggest that we should reorganize the Law for taxes, welfare purposes to prevent the following problems such as human trafficking. Simultaneously with a realization of the importance of sexual intercourse consent. Belongs to an awareness of safe -sex, Also a limitation of the age of the viewer and creator who participate in the process. We still have to protect minors from adult content. More importantly, child - pornography is also unacceptable and should be illegal in all states. And we definitely believed that if we can legalize sex content, sex creator in the nearer future. This will definitely make benefit to the states. Could you imagine the amount of tax that came from this industry that will flow into our economic system?

     

    CITATIONS

    Computer-related Crime Act B.E. 2550 

    Copyright Act B.E. 2537

    Thailand criminal code B.E. 2499

    'ไขข้อข้องใจ sexcreator หมายถึงอะไร ทำไมฮอตฮิตมีคนทำเยอะ' (เดลินิวส์ออนไลน์ 18 กันยายน 2564) <https://www.dailynews.co.th/news/284610/> สืบค้นเมื่อ 4 พฤศจิกายน 2564.

    'รู้จักไข่เน่าเส้นทาง Sex Creator สู่ดาว OnlyFans ก่อนถูกตำรวจไซเบอร์จับกุม' (ไทยรัฐออนไลน์ 21 กันยายน 2564) <https://www.thairath.co.th/news/society/2198986> สืบค้นเมื่อ 4 พฤศจิกายน 2564.


    photo by Charles Deluvio, on Unsplash


    Contributors 

    Nanchanat    Tangpawana

    Kornkod        Suk-aram

    Nattakarn     Vivatvanavong

    Chayanee     Maneein


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