Thai defamation law fails good people

Pressure is likely to intensify in the new year for Thailand to repeal its abusive criminal defamation laws as flaws in the multiple cases against advocate-journalist Chutima Sidasathian. Many others have exposed the laws’ deficiencies.
Last month, reports from two international NGOs highlighted the failure of recent reforms aimed at identifying and obliterating the increasing number of SLAPP (strategic lawsuits against public participation) cases.
A third well-regarded international organisation, the London-based Index on Censorship, also selected Ms Chutima from the shortlist of three for the Freedom of Expression Awards in the category of journalism. The award, announced on Nov 22 in London, went to Nasim Soltanbeygi, an Iranian journalist and human rights defender.
As a journalist, Ms Chutima and an Australian colleague faced down the powerful Royal Thai Navy (RTN) a decade ago and were found to be innocent of charges of criminal defamation and computer crimes. This year, Ms Chutima has also beaten eight of the nine charges laid against her by a local elected official after her investigation exposed a banking loans scandal involving the theft of millions of baht intended as financial aid for farmers.
While the local elected official said that his serial charges over Ms Chutima’s Facebook posts had nothing to do with the scandal but were “personal and political”, her investigation led to checks being made all over Thailand and the arrest of an elected official in another province over the disappearance of 100 million baht. The villagers who became victims of the fraud and theft had been fighting to have the scandal exposed since 2012, but law enforcement officers chose not to investigate. It wasn’t until after Ms Chutima revealed what had taken place that officials reacted.
Ms Chutima says Thailand should repeal the criminal defamation laws. Those who want to seek justice from libel can still lodge claims of civil defamation. “The laws could be modified so that once a civil case is decided, criminal penalties could be applied in extreme cases involving corruption or other crimes.”
Criminal defamation itself corrupts the judicial system. Ms Chutima says that police almost always accept criminal defamation allegations — often without a thorough investigation — because they see it as “their duty”.
A global campaign is being mounted to end the misuse of criminal defamation laws and SLAPPs against journalists, advocates and human rights defenders. Thailand, which takes a seat on the United Nations Human Rights Commission next year, is seen to be among the worst offenders.
Article 19 — London-based group advocating freedom of expression — calculated a 50% increase in the number of criminal defamation cases filed in Thailand from 2015 to 2020, adding that the country has “seen a deluge of criminal defamation cases against individuals, raising concerns about human rights abuses, labour rights violations, corruption, or government or corporate failures”.
In its September report, “Solving SLAPPs: Identifying and Addressing Gaps in Thailand’s Anti-SLAPP Framework”, the New York-based Clooney Foundation for Justice spells out across 112 pages the case for repealing criminal defamation, or at least introducing major reforms that upgrade recent flawed anti-SLAPP modifications.
“Across the world, the law is being weaponised to silence human rights defenders, activists, and media workers — Thailand is no exception,” the report begins. “Of the 36 criminal defamation SLAPPs identified in this report, [including Ms Chutima’s] none were filtered out by recently introduced anti-SLAPP measures or, indeed, by pre-existing screening processes.
“While none of the lawsuits identified in this report resulted in convictions, defendants were forced to spend time, money, and energy defending themselves against abusive litigation.”
In Thailand, more than 25,000 defamation cases have been filed since 2015, according to the recently released report “Silencing Dissent: Defamation Laws and the Fight for Free Expression in Thailand” prepared by Article 19.
The group warned that the defamation law “increasingly weaponised to silence critical voices” and urges Thailand to join the global movement towards decriminalising defamation and bring its legislation in line with international human rights standards.
“By undertaking comprehensive reforms, Thailand can uphold its commitment to human rights, foster a vibrant democracy, and create a more just and equitable society.”
The Clooney Foundation report added that Thai law is “failing to prevent judicial process from being turned against freedom of expression and assembly. As such, Thailand finds itself at a crossroads”.
At a three-day UN regional rights symposium in Bangkok last month, Ms Chutima spoke in a panel that addressed “Lawsuit or Lawfare? Ensuring Access to Justice in the Face of SLAPPs.”
“It may be that there are other solutions for other democracies, but I am convinced the criminal defamation laws need to be killed in Thailand if the country is to embrace true freedom of speech,” Ms Chutima said.
She has been declared a human rights defender and the cases against her earmarked as SLAPP cases after an investigation by Thailand’s National Human Rights Commission.
Although Ms Chutima’s unpaid work as a community advocate has freed scores of undereducated and impoverished farmers from ill-judged litigation and the inference of criminal behaviour on their part, Thailand’s Ministry of Justice has ruled that she is “not poor enough” to deserve financial assistance.
Alan Morison is the other journalist from the online news outlet Phuketwan found not guilty of criminal defamation and computer crimes in 2015.