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The Question on the Criminality of Defamation
  • In the era where people are enjoying their liberties to the fullest extent, people are entitled to say what they think. With defamation law, on the other hand, people cannot always say what’s in their minds out loud. With that, the coexistence of free speech and defamation is questioned.


    Defamation in Thai Criminal Law


    Defamation is codified in the provisions of Section 326 to Section 333 of the Penal Code. The overall definition of defamation according to Thai criminal law is the act that causes the reputation of a person or persons to be impaired and exposes such a person or persons to be hated or scorned by other persons, for example, defamation about be published of a document, drawing, painting, cinematography film,  picture or letters made visible by any means, gramophone record or an other recording instruments, recording picture or letters, or by broadcasting or spreading picture, or by propagation by any other means that is in section 328. However, defamation under Thai Criminal Law also provides an exemption from liability for expressing an opinion in good faith which is in section 329(3). This section is widely cited and mostly used to protect the accused.  


    According to the provisions of these sections, it has an objective to protect fundamental rights and human dignity by freedom of speech or any other that has an intention to violate any other person. However, the development of technology in recent years has changed so rapidly that it is easy to cause deformation and may inflict reputational harm. Moreover, the number of criminal defamation cases in Thailand has increased year after year. The case of Thammakaset Company Limited is an example that shows the dangers posed by criminal defamation cases in Thailand. Many charges which are the prosecution of 23 migrant employees and human rights advocates who reported on labor rights violations at the company's poultry farm have been filed since 2016. Even though Thammakaset repeated losses in courts, there has persisted to launch new cases.


    Defamation Application Problems in Thailand


    The sentences of defamation law in Thailand could be up to two years imprisonment and fines of up to 200,000 Thai Baht, facilitating private parties to initiate criminal proceedings against others by filing a complaint with the police or directly with the courts, or, worse, expediting the arbitrary and abusive application of law by the government against the people. Furthermore, there are laws that were invented to accomplish the desire to keep people muted, especially ones who are destitute.


    As a result, many presses from provinces in Thailand openly said that they are terrified by the law as the risk of imprisonment and damage claims by injured parties. To avoid those situations from happening, they might have to choose to not report or expose any information which is under the domination of those who hold clout in their hands.


    Should Defamation be a Crime?


    Whether defamation should or should not be a crime is a debatable topic. To understand this discourse, it must be established first why defamation is regarded as a crime. Free speech, although is a fundamental right, has led to some rights violations. It is not to say that all free speech is the cause, but that some people tend to think that they are entitled to exercise this fundamental right to free speech to harass others whether it be verbally, or via online or any platforms. Defamation law was, hence, created in order to restrict the abuse of free speech to harm other people. On the surface, defamation law as a crime infringes free speech, but taking the abuse of rights into account reveals that criminality of defamation is justified in order to protect those whose reputation is at stake.


    As mentioned in the Thai definition, defamation refers to a statement that injures the reputation of other persons regardless of factuality. Therefore, one could be sent to jail for two years for saying the truth that damages another’s reputation. For instance, some Burmese migrant workers filed a complaint to the Thai police about their Thai employer exploiting their work hours and keeping them in poor working conditions. Later, they were filed for defamation by the employer. In addition, defamation law can be used to shut down critics by either bleeding them dry or sending them to jail or both. This is an example of how the law that is supposed to restrict abuse of rights turns into another injustice. It is by these facts that the law is used slyly, albeit cleverly, some people believe that defamation should be only provided by civil law, not criminal law.



    Citations


    Thailand Criminal Code B.E. 2499


    The National Press Council of Thailand, 'Impact of Defamation Law on Freedom of Expression in Thailand' (July 2009) accessed 10 October 2021, from https://www.article19.org/data/files/pdfs/analysis/thailand-impact-of-defamation-law-on-freedom-of-expression.pdf


    Article 19, 'Thailand: Decriminalise defamation' ( 31 March 2021)  accessed 10 October 2021, from https://www.article19.org/resources/thailand-decriminalise-defamation


    Article 19, 'Truth be Told: Criminal defamation in Thai law and the case for reform' (March 2021) accessed 10 October 2021, from https://www.article19.org/wp-content/uploads/2021/03/Thailand_Truth_be_told_decriminalise_defamation-1.pdf


    ILAW Freedom, 'กฎหมาย "หมิ่นประมาท" ทางอาญา เครื่องมือพื้นฐาน "ปิดปาก" การมีส่วนร่วม' (2 สิงหาคม 2562) สืบค้นเมื่อ 10 ตุลาคม 2564, จาก https://freedom.ilaw.or.th/blog/ThaicriminalDefamation


    ILAW Freedom, 'มหากาพย์ ฟาร์มไก่ฟ้องคนงานพม่า+เอ็นจีโอ หลังพูดเรื่องการทำงานหนักวันละ 20 ชั่วโมง' ( 3 ธันวาคม 2561) สืบค้นเมื่อ 10 ตุลาคม 2564, จาก https://freedom.ilaw.or.th/node/625


    Photo by Markus Winkler, on Unsplash 


    Contributors

    Jitkeerati Kulsomboon

    Thanyaphorn Cheepnurat

    Yanisa Kunwee


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