Thread: Defamation and Thai law - Bangkok Post article

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Defamation and Thai law


Tilleke & Gibbins
Thailand has witnessed a number of high-profile defamation actions in recent years, many of which are currently pending in its courts. Of particular public interest is the 2004 case filed by Shin Corporation against media activist Supinya Klangnarong, and the recent media war between Prime Minister Thaksin Shinawatra and Manager founder Sondhi Limthongkul, which resulted in several defamation lawsuits that have since been withdrawn.

These multi-million-baht actions have drawn the attention of the international media and have placed an intense spotlight on the impact that Thai defamation law has on the free exercise of speech. While the focus is on the potential chilling effects in the media, the reality is that Thai defamation law directly affects businesses and private citizens alike.

In fact, average individuals, business owners, and company directors can find themselves subject to defamation lawsuits for the unwitting or careless publishing of statements, even in situations where there is a reasonable belief in their truth.

It is not necessary that the claimed defamation occur in a media setting, as liability can arise from statements made outside the wider media arena. For example, carelessly drafted demand letters and e-mails, criticisms of company policies and procedures, and even negative reviews of restaurants can all lead to potential defamation actions.

Regardless of an individual's personal feelings about the issue of free speech and open debate, it is important to understand Thai defamation law as it stands today, the legal process, and most importantly, how to minimise the likelihood of having to defend such actions. This article is a first of a two-part series providing such guidance.

Defamation. Defamation refers to a category of claims based upon intentionally harmful or false statements "published" in spoken or written form to third parties. Thai law makes no general distinction between spoken (slander) and written (libel) defamation. Further, and of critical importance, is the fact that in Thailand a party can be subjected to civil or criminal litigation for defamation, or both.

Civil Defamation. Section 423 of the Thai Civil and Commercial Code defines civil defamation as a statement made contrary to the truth, which is asserted or circulated as a fact, with resulting injury to the reputation, credit, earnings or prosperity of an individual.

Civil defamation claims are barred after one year from the date that the defamatory act and the person bound to make compensation became known to the plaintiff, or 10 years from the date the act was committed. Being unaware that a statement is false does not constitute a defence if a reasonable person should have known that such statement was false. All that is required is that an untrue statement was made with resulting damage to the plaintiff.

The problem, however, and what affects most defendants, is that the practical burden of proving falsity under Thai law does not lie on the plaintiff. Rather, the defendant is invariably placed in the position of having to prove that his statement was true to escape liability. Such truth can be difficult to prove in court and may prevent potential speakers from rendering even truthful statements if they are concerned about their ability to prove the allegedly defamatory statements in a later civil court action.

Even if a defendant is able to prove the truth of his statements, he may not be absolved of liability. This is because a defendant may also be required to prove to the satisfaction of the court that the allegedly defamatory statements were substantially justified, even if true. Statements made about certain "private" facts, even if they concern "public figures", may subject one to civil liability.

While admittedly good arguments can be made that such comment is justified, Thai courts have historically placed a greater burden on defendants in proving such justification than is required in some Western jurisdictions.

A defendant may also defend that his statements were privileged. For example, a legitimate defence may lie where the defendant can show that the communication was made in good faith to persons having a rightful interest in the information, such as when an employer provides employee performance evaluations to related business units related to an employee transfer, or when an association circulates notices to its members concerning actions that could potentially damage its business. Other forms of privilege include statements originating in court proceedings and in the Senate, House of Representatives and National Assembly.

With regard to evidentiary proof, Thai law permits a civil court to accept as true those facts adjudged by a criminal court relating to the same defamatory statements. This can streamline the evidentiary process and is one reason why civil defamation actions are often pursued current with or subsequent to criminal defamation actions.

Finally, it is important to emphasise that, in addition to available civil defences, the Thai Supreme Court recognises that a defendant in a civil defamation action has a right to defend using criminal defences to defamation. These criminal defences, which offer some advantages over traditional civil defences, will be discussed in Part 2 of our series: Criminal Defamation.

Michael Ramirez is a consultant and Thawat Damsa-ard a partner with the Dispute Resolution Department at Tilleke & Gibbins International. Please send comments and suggestions to Marilyn Tinnakul at marilyn@tillekeandgibbins.com

source: Bangkok Post (09/12/2005)

Part II from our friends at T&G

Criminal defamation of character: the Thai regime


Tilleke & Gibbins
Rarely does a week pass without media reports of new defamation actions being filed and prosecuted in Thailand. Frequently these legal battles are staged on multiple fronts, civil and criminal, and in multiple jurisdictions. Their effect on a defendant can be significant, particularly when faced with the potential for criminal punishment. This report, the second of a two-part series on defamation in Thailand, focuses on criminal defamation.

Criminal defamation. Section 326 of the Thai Penal Code provides that a person who imputes anything to a third party in a manner likely to impair the reputation of another, or to expose such person to hatred or contempt is guilty of defamation. If the publication is made in a visible or easily reproduced manner, such as through print, video, and recordings, then an offender can be incarcerated for up to two years, subjected to fines of up to 200,000 baht, or both. In addition, charges of defamation, if lodged against a company, will also extend to its directors, regardless of their involvement with the allegedly defamatory statement.

Generally, a person who feels he has been defamed can bring criminal charges in one of two ways: 1. he may file a complaint with the police; or 2. he may file the criminal action directly with the criminal court.

However, charges of criminal defamationare barred unless they are initiated within three months from the date that the offence and the offender became known to the injured party. They may also be withdrawn by the aggrieved party at any time prior to final judgment.

If a complaint is submitted to the police, they will question the aggrieved party and summons the accused to appear for similar questioning. After completion of an investigation, the investigating officer will issue an opinion to the Public Prosecutor, making a recommendation for or against prosecution.

If the prosecutor ultimately decides to prosecute, the matter will go to trial and the aggrieved party can join prosecution as a co-plaintiff. At that stage it is likely the accused will be required to post bail.

A person also has the option of filing criminal charges directly with the court . In that event, the court will schedule preliminary hearings to determine whether the facts support trying the case. If the court agrees that there are reasonable grounds to proceed, it will schedule a trial just as though the Prosecutor were bringing the charges.

Criminal defamation law provides the following defences. First, if the statement was true, except where the allegedly defamatory statement concerns a personal matter not in the public interest. Second, statements made in court by parties or their lawyers are not considered defamatory. Third, an expression of an opinion made in good faith (1) to protect a legitimate interest, (2) to comment about an official in his official duties, (3) to provide fair comment on any person or thing subjected to public criticism, and (4) to report on open court proceedings or meetings.

So while the law provides for certain defences to criminal defamation claims, it is important to note that truth is not an absolute defence. Of particular significance, and an area of considerable legal argument, is what personal matters are of the public interest. The distinction is more easily made when involving purely private figures, but is difficult when involving public persons. This leaves a situation in which a person can publish true accounts of a person, but is still subjected to criminal defamation claims. As for good-faith expressions of comment, it is important to note that the law limits situations in which fair comment is allowed and there are and will be situations in which an opinion, however reasonable, will not fall within the defence.

This is not to say that there are no other options available to parties accused of defamation. For example, the Thai Press Act allows a newspaper to avoid civil and criminal liability if it publishes a public retraction immediately following a request by party injured by untrue statements. In addition, a person wrongly accused of defamation may have the option of filing its own criminal action against the plaintiff for filing false charges.

Finally, one important distinction between criminal and civil defamation claims is that a person cannot be punished for criminal defamation for negligently publishing statements about another, even if false. In contrast, civil liability can extend to a party who has acted negligently in making defamatory statements.

Conclusions. Defamation actions, both civil and criminal, provide legitimate means by which an aggrieved party can seek compensation and justice for impermissible public comment. However, the law may have the unintended effect of providing a venue for plaintiffs to silence legitimate criticism.

Michael Ramirez is a consultant and Thawat Damsa-ard a partner with the Dispute Resolution Department at Tilleke & Gibbins International. Please send comments and suggestions to Marilyn Tinnakul at marilyn@tillekeandgibbins.com

source: Bangkok Post 23/12/2005

So, if someone calls me a tosser, can I do them for some spondolicks or will it just sit in court for years and cost me a fortune?

Also, does the fact that I am a tosser matter at all?

Met a guy up here was thwon in Jail for a couple days for defamation. Case is on going, A nightmare for the guy. I told him to file counter-charges for the same damn thing, a false accuasation is defamation right?

Originally Posted by marmite

So, if someone calls me a tosser, can I do them for some spondolicks or will it just sit in court for years and cost me a fortune?

Under UK law in order to sue for defamation of character, you need to have a reputation to lose in the first place.
What do you think?

Originally Posted by frisco

Met a guy up here was thwon in Jail for a couple days for defamation.

I was under the impression that defamation was a civil matter, unless you are in turkey and your name is Orhan Pamuk.

Nope it can be civil or crimminal as per teh opening posts. The guy oressng charges will, of course, drop the charges for a public retraction and 50k. Guess it's all about 'face' ain't it?

Originally Posted by frankie

Nope it can be civil or crimminal as per teh opening posts.

oops
guess I should read it.

Mind you, criminal defamation has been obsolete in the UK for donkeys years.
Rightly bloody so too.

yep - one of the main complaints by the free press gain is the criminalisation of defamation in T