By M.L. Numlapyos Sritawat
Formichella & Sritawat
June 2023
- Introduction
Defamation is something that almost everyone could encounter in Thailand. In this regard, many defamation cases are prosecuted and litigated yearly in Thailand. Indeed, legal commenters regularly comment (and opine) that defamation lawsuits are often intended as a form of strike suits or lawfare.
Indeed, according to article19.org, “criminal defamation provisions in Thai law (are) against international human rights standards, highlighting a growing international consensus in favour of the decriminalisation of defamation.”
Additionally, as much of communications are now broadcast electronically, the Computer Crimes Act makes it a crime to upload false information that can cause damage to the public.
With criminal defamation law and the Computer Crimes Act, it is not difficult to understand the concern with speaking or complaining (at least publicly), even if such a complaint or communication would not be defamatory. The costs and risks of defending against such claims are intimidating, and any rational person will consider the costs versus the benefits.
There are defences against defamation accusations, as we will generally cover here. Indeed, in the context of the general sense that influential figures use the courts to intimidate and harass critics, rulings of the Thai Supreme Court in part 5 of this article may surprise the general understanding of criminal defamation law. We are not suggesting that abuse of criminal defamation law does not exist. Instead, we are suggesting there are legal defences against claims of defamation, whether claimed in bad faith or not.
- Legal Source of Criminal Defamation
The source of defamation law starts at Section 326 of the Thai Penal Code. Under Section 326, whoever imputes to a third person in a manner likely to impair the reputation of another person or to expose such other person to be reputationally damaged is said to commit defamation and shall be punished with imprisonment not exceeding one year or fined not exceeding twenty thousand Baht or both.
The information conveyed to the third party must have the nature of ‘harming’ the victim, which means speaking maliciously, making false accusations that cause harm to others, and communicating information to a third party, whether true or false, intended to damage the reputation of the victim, subjecting them to defamation or hatred. Note that we are speaking of criminal defamation herein and the criminal elements of Actus Reus, Mens Rea, and no defence applies.
- Statutory Defences
However, there are defences and consequences to bad faith accusations of defamation enshrined by statute:
Section 161/1 of the Thai Criminal Procedure Code provides (translated): ‘In a case filed by a private complainant if it appears to the court—or through examination of evidence called at trial—that the complainant has filed the lawsuit in bad faith or distorted facts to harass or take undue advantage of a defendant, or to procure any advantage to which the complainant is not rightfully entitled, the court shall order dismissal of the case, and forbid the complainant to refile such case again. As stated in paragraph one, filing a lawsuit in bad faith includes incidents where the complainant intentionally violated a final court’s orders or judgments in another criminal case without providing any appropriate reason’.
Section 165/2 provides (translated): ‘During the preliminary hearing, the defendant may submit to the court a significant fact or law which may bring the court to the conclusion that the case before it lacks merit, and may include in the submission as persons, documents, or materials to substantiate the defendant’s claims provided in the request. In such a case, the court may call such persons, documents, or materials to provide evidence in its deliberation of the case as necessary and appropriate, and the complainant and the defendant may examine this evidence with the court’s consent.
Indeed, if a case is dismissed under the above-referenced Sections, a party has the basis to file a claim for malicious prosecution.
- Examples of Criminal Defamation
Common types of defamation include:
- Accusing someone of misconduct or dishonesty, such as claiming they accept bribes, are fraudulent, commit crimes, or betray their country.
- Damaging someone’s reputation regarding personal sexual matters, such as claiming they were pregnant before marriage, have multiple partners, are rapists, perverts, mistresses, or prostitutes.
- Accusing or implying someone’s work, profession, or business, such as claiming someone is corrupt, selling counterfeit goods, cheating, or abusing power.
- Questioning someone’s financial credibility, such as claiming they issue bounced checks or have financial problems.
Again, the intent of the above examples must be intentionally or criminally negligent to cause reputational harm.
The conveyance can be in any form, such as face-to-face conversations, phone calls, video calls, messaging applications like LINE, Facebook Messenger, posting text on Facebook or Instagram, making announcements in various media, publishing in newspapers, giving interviews, writing letters, sending faxes, sign language, hints, gestures, symbols, or any means that enables a third party to receive and understand the communicated information, regardless of the language used. The offence of defamation is completed when the message reaches a third party.
Please note that defamation through advertising carries heavier penalties according to the law, as discussed below.
According to Section 328 (translated): If the offence of defamation is committed through advertising using documents, drawings, paintings, movies, images, or letters, whether distributed through sound, images, recordings, or writings or by broadcasting or disseminating through other means, the perpetrator shall be punished with imprisonment not exceeding two years and a fine not exceeding two hundred thousand Baht.
For example, posting on Facebook, putting up signs or notices, creating drawings, or publishing on social media platforms creating movies publishing on YouTube, broadcasting advertisements on the radio or podcasts, or posting on various online media would be considered defamation through advertising, resulting in heavier penalties.
- The Thai Judiciary’s Position
With the Thai legal system replete with defamation claims, the Thai courts have been instrumental in defining defamation law. For example, a classic court ruling wherein a photo of a person is posted with an English caption and Thai translation, which states that the person owes 15,910 Baht and has not yet paid, is defamatory. Under such a court ruling, it would harm the person’s reputation, subjecting them to defamation or extreme dislike. Even if the accusation is true, it does not exempt the act from being a defamation offence, as there was no defence or other legitimate purpose for the posting. Additionally, the court found that the communication did not serve any public interest. A common reason, or attempted defence, would be that the public interest is served to inform that a person does not pay debts. Still, the courts find that adjudication or disputes over debts are for the courts to determine. Once such communications are posted, the damage to the victim is apparent and not easily recoverable. Further, it is not the realm of private parties to impose judgement or punishment on a debtor but rather the mechanisms of law and legal procedures.
However, specific legal provisions provide exemptions from liability (Thai Penal Code Section 329) and exemptions from punishment (Thai Penal Code Section 330) for defamation offences.
Section 329 of the Thai Penal Code states that a person, in good faith, expresses any opinion or a statement shall not be guilty of defamation:
- Through self-justification or defence or to protect a legitimate interest.
- An official in the exercise of his functions.
- By way of fair comment on any person or thing subject to public criticism; or
- By way of a fair report of an open proceeding of any Court or meeting.
An example of a successful defence against a defamation claim is a court ruling regarding a defendant who was the managing director of a Thai company. The defendant issued a letter to dismiss an employee from his employment with the company. The letter was witnessed by third parties and contained the following message (translated):
‘I regret that your refusal has left us with no choice but to terminate your employment with the company immediately…Please leave behind all company assets, including keys to desks, doors, or any vehicles in your possession, and any documents and papers related to the company’s business. We want to remind you that any information you acquired during your employment with the company related to the company’s operations, policies, relationships with customers, and customers’ business, is considered confidential.’
The court found that although the text of the letter does not explicitly display good intentions toward the employee plaintiff, the defendant acted in his capacity as a company director. The letter is not evidence of any indication that the defendant is acting dishonestly or that the plaintiff is portrayed as a socially undesirable individual who is revealing the company’s or its clients’ secrets. The text in the letter does not attempt to insinuate or tarnish the plaintiff’s reputation, leading to defamation or vilification. The letter expresses a statement made in good faith, and there is no legal wrongdoing.
In the realm of the judiciary, criminal defamation liability is fact-based while adding context, nuance, and analysis of the intent of the case before the court.
The Supreme Court of Thailand has issued numerous rulings setting a precedent of defences to criminal defamation claims.
For example:
- A defendant (in a criminal defamation case), the head of a municipal administration organisation, issued a public statement through a distributed letter stating that the plaintiff fabricated a certificate of computer skills training conducted by a subdistrict administrative organisation. Furthermore, the plaintiff used the documents above to apply for a position as a subdistrict employee with a provincial government, even though the subdistrict administrative organisation never provided the plaintiff with any computer training. In this regard, the defendant made a public announcement to ensure that the residents of the subdistrict were informed of the facts regarding the plaintiff’s fabricated computer skills training.
Although the defendant’s communication may potentially damage the plaintiff’s reputation, defame, or slander the plaintiff, the defendant’s actions were justified based on the finding that the plaintiff indeed fabricated the certification documents. Therefore, the defendant expressed an opinion or communicated a message to protect a legitimate interest under the principles of fairness. Consequently, the defendant is not guilty of defamation per Article 329 (1) of the Penal Code.
- Another Supreme Court case where criminal defamation defendants filed a petition with relevant authorities against the plaintiff, alleging that the plaintiff exerted undue influence to manipulate a decision to award a government contract using the plaintiff’s official authority.
The Supreme Court found that the fact that the plaintiff did hold a position of authority to appoint the government committee responsible for evaluating the bidding process, as well as being the presiding officer of such committee, created a perception of bias among the general public and that both defendants had been adversely affected by the plaintiff’s actions. The Court ruled that both defendants could express their opinions and present their views to the appropriate and relevant authority, believing the plaintiff’s alleged actions aligned with their allegations. There was a proven legitimate interest, self-defence, or defence of their interests under the principles of fairness and within the boundaries of Section 329(1). The actions of both defendants did not constitute defamation.
- In another Supreme Court ruling, criminal defamation defendants jointly drafted a message to be published in a newspaper. The message stated that several companies had produced counterfeit rubber shoes using the defendant’s registered trademark. Considering this, it was necessary to take legal action by involving law enforcement officers to apprehend the individuals responsible for these actions. Subsequently, the defendant listed the names of all four suspects (as it was confirmed that law enforcement officers had arrested them for counterfeiting shoes bearing the defendant’s registered trademark). This was done to disseminate the news to prevent others from imitating or counterfeiting. There was no other intention involved.
In this regard, the Supreme Court ruled that the defendant intended to defend himself or to protect his interests. Therefore, the defendant is not guilty of defamation.
The Court reasoned that Section 329 of the Thai Penal Code exempts actions that do not constitute defamation to ensure that individuals expressing opinions or statements in good faith are not considered defamatory. This allows for criticism of others within the boundaries established by law and for preserving personal or public interests. The scope of permissible objection depends on various factors, including the nature of the offence, the parties involved, the location of the incident, the causal factors, and the surrounding circumstances.
Another example of a Supreme Court ruling states that although the words and statements made by the defendant may be seen as an attack on the plaintiff, who is Prime Minister holding the highest executive position in the country and a political leader, it is expected by society at all levels, both domestically and internationally, that the Prime Minister must possess integrity and exhibit transparent behaviour. A Prime Minister’s actions are subject to scrutiny in all legal and moral aspects, including their conduct in society in all circumstances. Public figures, such as a Prime Minister, whose decisions significantly impact the community, are open to legitimate criticism and must accept broad and diverse perspectives.
- Statute of Limitations for Criminal Defamation
In all cases of criminal defamation, whether it is the offence of ordinary defamation, defamation through advertisement, or defamation of a deceased person, the issue is considered compoundable.
An injured party must file a complaint or initiate legal proceedings (under most circumstances) within three months of the date they became aware of the defamatory act and identified the person responsible for the offence. If the injured party fails to file a complaint or initiate legal proceedings within the specified time frame, the case shall be deemed time-barred and cannot be pursued.
The comments herein are for discussion and information purposes only and are made as of June 2023. Any developments after the aforesaid date are not included herein. Nothing herein should be or can be relied on as legal advice. If you are legally engaged in a criminal defamation matter, seek counsel from a qualified legal professional.
For any questions, you may contact M.L. Numlapyos Sritawat at [email protected]
© Formichella & Sritawat Attorneys at Law
