Tesco has dropped its libel case against Thai columnist Kamol Kamoltrakul (pictured). But the libel laws in Thailand are still hostile to journalists, as Sinfah Tunsarawuth explained in Index on Censorship’s “Big Chill” issue

Despite being an Asian country that enjoys considerable individual freedom of expression and press freedom, Thailand still treats defamation as a criminal offence, with a maximum two-year prison sentence and fine of 200,000 Thai baht (US$5,700). Although national press associations have been pushing for decriminalisation for years, Thai society has not been responsive to calls for change. This is partly because of a fear that without the threat of a prison sentence there will be no restraint on sensational journalism. There are also concerns about existing self-regulation. In Thailand, newspapers are the only mainstream media that are privately owned and are therefore the most outspoken critics of the government and those in power. Terrestrial radio and television are either owned by, or owned and operated by, the state. They come under government regulation and, as a result, are more conservative in their news coverage than the press. Thai newspapers are also highly sensational: they rely on day-to-day newsstand sales, rather than monthly or yearly subscription, and this prompts them to generate eye-catching headlines to draw attention.

Yet most Thai newspapers do not take precautionary measures to protect themselves from being sued. Even the more established papers that employ full-time in-house lawyers do not take legal advice before publishing stories that could be seen as defamatory. They claim that they cannot have stories read by lawyers before publication because of time pressure. Most newspapers will employ lawyers only when they are sued in court.

In Thailand, defamation is a criminal offence under the Penal Code, which has been enforced since 1957. In 1992, the maximum penalty was raised to two years’ imprisonment and a fine of 200,000 baht (US$5,700). This is equal to the maximum jail term for physical injury, while the applicable fine is the highest in the code.

In the Civil and Commercial Code, civil defamation is part of provisions under wrongful acts, or tort, and is an act that injures the reputation, credit, earnings or prosperity of another person. The injured person is then entitled to seek compensation from the offender. The Civil and Commercial Code sets no minimum or maximum compensation the court can award the injured person, leaving it entirely to the discretion of judges.

A person claiming to be defamed can either file a criminal lawsuit and seek monetary damages, or he can file a separate civil case for compensation. He can also choose to file only a civil lawsuit against the offender. In case the plaintiff files separate criminal and civil lawsuits, the civil court will usually await the judgment of the criminal court before making any decision of its own on the monetary award.

Usually, when a court sentences a defendant to imprisonment, the jail term is likely to be suspended. However, this is unlikely if the defendant has previously received a conviction. Tullaya Sirikulpipatana, the publisher of the Thai-language daily ASTVManager, for example, is fighting two criminal defamation cases in Dika Court, the Supreme Court. If the Dika Court upholds the judgment of the lower court, he could actually end up in jail. He has been found guilty in two previous defamation cases where the jail term
was suspended.

In a new trend, Thai corporations are now seeking exorbitant damages in defamation cases. In 2005, Picnic Corporation, a listed company in theThai stock market that sells cooking gas, sued the Matichon newspaper group for criminal defamation and sought 10 billion baht (US$286m) in damages, the highest ever claimed by a plaintiff in a defamation case in Thailand. The company also separately sued Prachachat Turakij, a business newspaper in the Matichon group, for criminal defamation and sought another five billion baht (US$143m). The court of first instance dismissed the two cases in 2006. Picnic appealed the decision, but later decided to withdraw the appeals.

In November 2007, the giant retailer Tesco Lotus, the Thai subsidiary of UK multinational Tesco, brought a criminal defamation case against Jit Siratranont, a senior official of the Thai Chamber of Commerce, for comments published in ASTVManager daily, and sought one billion baht (US$28.6m) in damages. In February and March 2008, it then sued Kamol Kamoltrakul, a columnist, and Nongnat Hanwilai, a reporter on the Thai-language publication Krungthep Turakij in two separate civil defamation cases, claiming 100 million baht (US$2.86m) from each of them. On 28 January 2009, Tesco Lotus formally withdrew its lawsuit against Nongnat after she published an apology in her newspaper, following court-appointed mediation. The two other cases are still pending in court. These excessive damages could certainly make the defendants bankrupt.
However, the courts have never actually awarded such large claims.

The highest amount ever granted by the Dika Court in a defamation lawsuit has been five million baht (US$143,800). A court of first instance has granted ten million baht (US$287,000), but the case is still pending in the court of appeal. The amount is an all-time high for a court of first instance in a defamation case. It is likely that plaintiffs are seeking such high damages chiefly to frighten journalists into settling disputes through court-appointed mediation or out-of-court negotiations.

Thai journalists face an uphill task decriminalising defamation. Despite the increase in the maximum penalty for criminal defamation in 1992 and the rising claims for damages, Thai newspapers have made some headway in protecting press freedom. In 2007, press associations were able to solicit support from the then military-installed National Legislative Assembly to repeal the Press Act of 1941 and replace it with a new Press Registration Act, thanks to the support of a number of journalists and their sympathisers who had been appointed to the assembly. The new law virtually strips Thai authorities of all their power in controlling and regulating Thai newspapers. Thai nationals who want to start a newspaper can now simply notify the authorities rather than seek a permit. Thai authorities can no longer censor or close any newspaper at will under the new law.

The law also relieves newspaper editors and publishers from being liable for defamation. Under the 1941 Act, the editor and the author of a defamatory article had to share the liability as principals of the offence, and if the author could not be located, the publisher became liable as well.

Now it seems that reporters or columnists alone will face defamation suits. This appears to have satisfied many newspaper editors and owners, who had spoken out publicly about their concern at being liable for articles they had not written. The three defamation lawsuits filed by Tesco Lotus in Thailand are cases in point: no editor or publisher was sued.

The National Press Council of Thailand (NPCT), a self-regulatory body of major newspapers in the country at the forefront of campaigning for defamation law reform, last organised a major conference in October 2004 and a follow-up meeting in January 2005 to solicit support for a change in the law. Judging from documents from the two meetings, it seemed the NPCT could not build up a strong enough momentum. Almost four years lapsed before there was any further activity.

In 2008, the NPCT and the free speech group Article 19 started to organise a series of consultations with various professional groups with an interest in defamation law. But Thai journalists are facing an uphill task in convincing others to share their ambition for decriminalising defamation.

This series of consultations will continue until the second half of 2009. University law lecturers, for example, said during one of the consultations that an individual’s liberty could be affected if defamation no longer carried the penalty of imprisonment. They added that journalists need to put a more efficient self-regulatory system in place before lobbying for a change in the law.

In another consultation session, police officers said newspapers exerted great influence upon society and therefore had to bear greater responsibility for defamation than ordinary citizens. Some of them even suggested that the current penalty should be increased in cases where inaccurate information is published in bad faith.

“The quality of the Fourth Estate in our society does not justify the idea of doing away with a jail sentence for defamation,” said a senior state prosecutor in another meeting, which probably best summarises the general attitude towards Thai newspapers.

But Tullaya Sirikulpipatana of ASTVManager insists that journalists should not face the threat of a prison sentence. “Defamation law has been used by those in power as the tool for preventing news media from doing their job.”

Tullaya is a Thai news editor who has been sued for 50 such cases in the last 17 years, of which 20 are still pending. He did admit that not all of his colleagues are ethical. “Some newspapers have distorted information in their stories and some journalists are known to have been bribed by politicians and businessmen.”

Associate Professor Malee Boonsiripunth, who teaches journalism at the University of the Thai Chamber of Commerce in Bangkok, says that the NPCT has failed to mobilise support for reform, and that most journalists were not aware of the ongoing efforts. ‘They need to become more united and draw the public as a whole into sharing their arguments that politicians have been using this law to persecute journalists.’

The NPCT is non statutory, unlike many other self-regulatory bodies of other professions that are created by the enactment of a specific law. It was formed by a group of editors in 1997 and is therefore largely represented by major Bangkok-based newspapers. It can reprimand its members by verbal or written notice, but has no real authority.

Tullaya said he did not believe that the NPCT would necessarily become a more effective self-regulatory body if it were endorsed by law. “The most effective way of regulating newspapers is through social sanction,” he said. “Putting someone in jail is a punishment of individuals. But if your newspaper is denounced by society, the whole organisation of that newspaper will be punished. If readers no longer see your paper as trustworthy, they will stop buying it.’”

Sinfah Tunsarawuth is an independent media lawyer and writer based in Bangkok, Thailand

This article first appeared in Index on Censorship magazine, Volume 38 Number 2. Click here to subscribe.