Thai authorities should uphold the right to freedom of expression by decriminalising defamation, a human rights group has said after the dismissal of criminal defamation cases brought against two activists by a local chicken processor.
Fortify Rights has also called for all other pending criminal defamation cases to be dropped as a step toward reform, in line with a pledge made by the Thai government in 2019 to prevent judicial harassment.
The Court of Appeal on Wednesday upheld a Criminal Court ruling in 2020 that dismissed defamation charges brought by Thammakaset Co Ltd against activists Sutharee Wannasiri and Nan Win.
The ruling “is a right step but further steps are necessary to prevent criminal defamation cases from derailing Thailand’s human rights commitments, including its commitments on business and human rights principles”, said Amy Smith, executive director of Fortify Rights.
“The work of human rights defenders is within the public’s interest; these cases are not. Thai authorities should urgently decriminalise defamation and bring an end to other cases brought against human rights defenders.”
Criminal defamation is used frequently by powerful individuals and groups in Thailand to intimidate and silence critics. Cases can drag on for years, demoralising defendants and exhausting their financial resources. They have come to be known by the acronym “Slapp” — Strategic litigation against public participation.
Lop Buri-based Thammakaset, a former supplier to the agribusiness giant Betagro, first lodged complaints in October 2018 against Nan Win, a former Thammakaset employee and migrant labour rights activist, and Ms Sutharee, a former Fortify Rights human rights specialist, for their involvement in activities related to a film on the right to free expression.
The Thammakaset saga dates back to 2016 when a complaint filed with the National Human Rights Commission alleged that migrant workers at the farm were forced to work up to 20 hours a day, were paid less than the minimum wage and had their identity documents confiscated.
The Department of Labour Protection and Welfare in August 2016 ordered the company to pay the workers 1.7 million baht in compensation and damages, but the money was not handed over until 2019.
The retribution has been incessant. Thammakaset over the past five years has filed 39 criminal and civil complaints against 22 individuals including migrant workers, journalists, human rights defenders and one media company.
Ms Sutharee also faced a civil suit in which she was asked to pay 5 million baht for posting comments about the company on Twitter.
A criminal defamation complaint against Ms Sutharee was later combined with one against Nan Win, one of the 14 migrant workers who initiated the abuse complaint.
On June 8, 2020, the Criminal Court found the two defendants not guilty and dismissed the cases. A defence lawyer said the court found that their public talks, interviews and online postings had presented information that was true and well documented, and therefore they were not responsible for any damage to Thammakaset.
More suits brought by Thammakaset are still ongoing, including a case against former National Human Rights Commissioner Angkhana Neelapaijit, and another combined case against Ms Angkhana and the Fortify Rights specialists Puttanee Kangkun and Thanaporn Saleephol.
The trial of Ms Angkhana is scheduled to resume on April 25, and preliminary hearings of the combined case are scheduled for May 31 and June 17.
According to Fortify Rights, Thailand in 2019 became the first nation in Asia to develop a National Action Plan on Business and Human Rights, under which it committed to protect human rights defenders and prevent judicial harassment. The Ministry of Justice this year has held workshops to raise awareness of the issue.
The Criminal Code penalises those convicted of defamation under sections 326 and 328 with imprisonment up to two years and a fine of up to 200,000 baht per count. Under international law, imprisonment is considered as disproportionate, excessive and unnecessary punishment for acts of defamation since custodial penalties have “a chilling effect on freedom of expression”, said Ms Smith of Fortify Rights.
“Human rights defenders should be able to conduct their work without fear of reprisal,” she said. “It is in Thailand’s interest and the public’s interest to bring an end to criminal defamation once and for all.”
