THAILAND: Thailand’s obsolete criminal defamation law must be scrapped

On Monday, September 6, Supinya Klangnarong will go to court on a charge of criminal defamation arising from an interview printed in the Thai Post newspaper last year; three of its editors are also subject to legal action. In the interview, Supinya pointed out how the profits of media conglomerate Shin Corp have increased enormously since its founder, Thaksin Shinawatra, became Prime Minister. Supinya argued in the interview that the political system in Thailand has been manipulated to favour his corporate interests. For this, she now faces criminal charges, and a civil claim for 400 million Thai baht (US$10 million) by the conglomerate.


Supinya became a target for attack not only as a result of the article in the Thai Post, but also because of her work to reform the electronic media in accordance with the democratic vision of article 40 of the 1997 Constitution. She worked successfully to obtain a law favourable to popular media, the Wavelength Regulator Act, in 2000, and then began the steps needed to see the law implemented by way of an independent regulatory body—steps that pose a threat to the existing media structure in Thailand.


Criminal defamation has in recent years been condemned globally as offensive to basic rights of free expression and publication. Many countries have recognised that criminal defamation is obsolete, and have removed it from the statute books. Unfortunately, Thailand is not among them. There, a person convicted under section 328 of the Penal Code may be subject to a fine of 200,000 Thai baht (US$5000) and two years’ imprisonment. This is an extremely backward provision entirely out of place in a modern and democratic society, and out of step with developments in international law. It is also contrary to the both the letter and spirit of the 1997 Constitution, which guarantees unrestricted freedom of expression.


The reasons that criminal defamation has been rendered obsolete are many. They have been articulated in great detail through documents issued over some years by the UN Human Rights Committee—which oversees the International Covenant on Civil and Political Rights, to which Thailand is a party—the Special Rapporteur on freedom of opinion and expression, and prominent rights groups such as Article XIX. Among the principle reasons, first, criminal defamation cases stifle free speech by intimidating others from speaking openly and directly about matters of public interest. Secondly, they improperly shift the burden of proof onto a criminal defendant. Thirdly, criminal defamation is unnecessary when civil defamation exists as an alternative.


As for civil defamation, there are also many international standards that should be considered by the courts in these cases. Among these, first, the purpose of a defamation suit should be limited to protecting a person or legal entity from public ridicule or hatred; not, by contrast, to stifle legitimate criticism of public bodies, corporations or persons, particularly where this is done in the public interest. Secondly, a civil defamation suit should be granted only in cases where the offending statement is demonstrably false, with the burden of proof resting with the complainant. Thirdly, any remedy granted in a civil defamation suit should be with the purpose of redressing the harm caused to the complainant, not punishing the person or persons responsible for the defamation. Where the remedy granted involves payment of compensation, the amount must be proportionate to the harm done, and should take into account other factors, such as the overall negative effect on free speech that may be felt as a consequence.


Supinya Klangnarong and the editors of the Thai Post newspaper now face possible jail terms and financial sanctions under a backward and unnecessary law that runs contrary to the direction of all international standards and the national constitution. Under these circumstances, the government of Thailand and the general public should be asking whether this trial should be proceeding at all.


The Asian Human Rights Commission considers this case to be of historic importance for the people of Thailand at a time that many of their basic human rights are under threat. The case will establish the extent to which international norms relating to freedom of expression and publication are being upheld in Thailand. Human rights and media rights groups throughout the world should launch a strong campaign for the abolition of criminal defamation laws there. Civil society groups in Thailand also should redouble their support for Supinya and her co-defendants, and take an active part in measures to abolish these offensive legal provisions without delay.

The Campaign for Popular Media Reform has established a separate bank account as a fund for the court case. For persons or organisations interested to contribute, the details are: Siam Commercial Bank; Ratchadapisek Road 2 Branch; Savings Account; A/C Supinya Klangnarong, Bhibhop Thongchai, Pittaya Wongkul; No. 075-2-32433-6. For further details contact the campaign directly: +66-2-6910437 to 9 (tel. & fax);

Document Type : Statement
Document ID : AS-32-2004
Countries : Thailand,
Issues : Administration of justice,