The Criminal Defamation laws as common tool to ‘silent’ expression.


Defamation offense is often implemented among controversial situations, especially when there are various different opinions or ‘cursing’. Particularly, in an age where people can share comments through their social media platform. Expressing negative emotions, rational criticisms, or sharing different opinions on various issues all can be easily done at all times. Consequently, the increase of the defamation cases is seen.
When someone notices that they are attacked by messages and would like to counter by implementing the law. Defamation offense has come into the first place as the most common option, and it can be used with almost all cases. The defamation offence under Thai law imposes penalties in both criminal code and civil and commercial code. Yet, both types of defamation have different legal components and different proceedings. As follows;
Criminal Defamation comes with exception for fair criticisms. 
The criminal code stipulates defamation offences in Section 326, which is often applied with Section 328 as an increased penalty. As follows;
Section 326 Whoever, imputes anything to the other person before a third person in a manner likely to impair the reputation of such other person or to expose such other person to be hated or scorned, is said to commit defamation, and shall be punished with imprisonment not exceeding one year or fined not exceeding twenty thousand Baht, or both.”
Section 328 If the offence of defamation be committed by means of publication of a document, drawing, painting, cinematography film, picture or letters made visible by any means, gramophone record or an other recording instruments, recording picture or letters, or by broadcasting or spreading picture, or by propagation by any other means, the offender shall be punished with imprisonment not exceeding two years and fined not exceeding two hundred thousand Baht.”
It can be seen that defamation offences under Section 326 must have ‘a third party’ as a receiver. Cursing between two people is still not an offence. And messages that can be offensive must damaged to other's reputation. The law does not impose that defamation offenses must be a lie. Telling the truth which causes damage to others' reputation can also be defamation offences as well. But only agressive words may not be defamation if the messages could not urge people to hate the person being mentioned.  
If defamation is done by media regardless of any types, including social media, it must be under Section 328. When it comes to ‘defamation by publication’, there will be a higher penalty. Most defamation cases will be done through either type of media. If Section 326 is being used, it often comes along with Section 328. 
Yet, criminal defamation offenses still have many exceptions in order to protect the freedom of expression as well.  Such as; 
"Section 329 Whoever, in good faith, expresses any opinion or statement:
(1) By way of self justification or defense, or for the protection of a legitimate interest;
(2) In the status of being an official in the exercise of his functions;
(3) By way of fair comment on any person or thing subjected to public criticism; or
(4) By way of fair report of the open proceeding of any Court or meeting,
shall not beguilty of defamation."
Section 330 In case of defamation, if the person prosecuted for defamation can prove that the imputation made by him is true, he shall not be punished.But he shall not be allowed to prove if such imputation concerns personal matters, and such proof will not be benefit to the public.”
The offenses of defamation under Criminal Code still have many exemptions for expression with a good faith. Exemption under Section 329(3) is widely cited and can be used as an accused’s protection most often is the 329(3) for comments or criticisms in the way that the public does as a normal behavior, it is not considered as defamation. Even though it may frame up others that can devalue others’ reputation or credit, it is stil not considered as criminal defamation as well. This exemption leads to more protection of criticism either against official’s government or inappropriate things in society. 
Moreover, Section 330 still accepts criticism on public interest and it must be true. If not, it will not be considered as an exemption. In case of those who say believing with good faith that what they say is true, the expression under these indicated factors will not be punished even if it is an offense. 
An enactment of defamation as Criminal law with penalty including imprisonment and fine making the criminal defamation proceeding can be luanched by two methods. Firstly, the victim files a lawsuit to the court by private lawyers. Secondly, reporting to the police in order to let them gather all of the evidence prior to prosecution. State prosecutor will take responsibility to make the case and file to the court. Regardless of the method chosen, criminal defamation is a compoundable offence, the victim must initially prosecute on their own. If the victim does not intend to prosecute, the state has no right to start the prosecution on defamation proceeding at all. 

Civil defamation : sue and claim damages on your own.  


The Civil and Commercial Code in ‘wrongful acts’ chapter imposes regarding defamation as follows; 


Section 423 A person who, contrary to the truth, asserts or circulates as a fact that which injurious to the reputation or the credit of another or his earnings or prosperity in any other manner, shall compensate the other for any damage arising therefrom, even if he does not know of its untruth, provided he ought to know it.”


Apart from criminal offense, defamation can be charged under Civil law as well. Expression that is injurious to others reputation can be considered as ‘a wrongful act’ of another person. Any one who defames another person can also be sued in a civil case. The process of civil case is that when the court found guilty, the offender is bound to make a compensation mostly with money. 


The elements of civil defamations differ from the criminal one because only speaking, contrary to the truth, will be charged under civil defamation. It is not any guilt if speaking the truth. As for the principle of civil law, comments or expression of opinion on something that is not true without knowing and involved in that matter, there is no liability. 


Contrary to criminal proceedings, civil cases have no police officers, state prosecutors or any state proceeding. If the injured person wishes for compensation, they have to file lawsuit on their own or get private lawyer to do it on behalf. The injured person needs to pay court fees. In civil proceedings, defendants will not be detained, or be sent to prison, which is basic freedom’s restriction.  

The problems of implementation of criminal defamation : unnecessary burden for the defendant.
Previously, as we can see in many cases, criminal defamation were used as a tool to counter an opposed opinion. Even though the penalty of this offence is not that high and there are many exemptions, to bring the speaker into the prosecution carries high cost. Followed by travelling expenses, lawyer fee and also bail security. Fearness is also created by this measure for people who want to participate in public issues.
The disadventage of criminal defamation is that state officials such as police officers, public prosecutors or even judges have to work for the victim. Since the process of issuing warrant, informing the charge, investigation, prosecution and trial. All of these processes are provided by state officials whereas the accuser just wasted their time only two or three hours to report. Contradictorily, these processes cause many unnecessary burdens to the accused, for instance, they have to appear to the police and get the lawyer for legal assistant, along with seeking or gathering evidence without state’s support. From this matter, it might be called ‘ A Judicial Harassment’  
Furthurmore, in criminal procedure, when the case is submitted to the court, most of the accused will request for pre-trial release. The bail for defamation offense required up to 50,000 to 100,000 bath. If the accused cannot afford the bail, they will be detained during trial. If they cannot get a lawyer or have no time to prepare for prosecution, they might fail the case and be punished by imprisonment or pay fine. Besides, to be an accused in a criminal case also damages reputation or credit, particularly, when they have to go to the police station or to the court. It turns out that expression parties have to bear higher burden instead of the injured person. 
According to the information collected, those who launched criminal defamation cases tend to have superior power in thee society such as the government organizations, employers, those who being knowledgeable in law or having high social status. Whereas, the accused tend to be in a lower status, for example, the politics activists, NGO workeers or even people who get an effect from government projects. Many criminal defamation cases did not intend to protect justice or to punish the wrongdoers, but it provided a tool to silence people’s expression and participation. 
As for the results of the criminal proceedings, if the court ordered to dismiss the charge by exemption under Section 329. It does not mean the plaintiff looses or the controversial content is true, or nobody injure from that action. If the controversial messages go with the exemption, the court has to dismiss the charge without considering whether it is true or not. Or even if the court convict the defendant, it also does not mean the content is false because telling the truth can be an offense. Therefore result of a criminal defamation case is not beneficial to any party. 
Criminalisation of expression by imprisonment or fine, is not the right way to cope with the conflict between different sides in the society and the victim does not get any remedy from such criminal penalty. 
Examples of imposing defamation law to silence people’s expression cases. 
From 2007 to 2017, when there were criticisms on social media and the person who being mentioned cannot accept those meesages, the Computer-related crime act B.C.2017, Section 14(1) was being used to attack the unwanted messages. Charged with Section 14(1) is punishable by higher than defamation offences penalty. By imprisonment not over 5 years or fine not more than 100,000 baht. Later on, there is an amendment to Section 14(1) and enacted in 2017 by rewriting it more clearly regarding not allowing this law to be prosecuted together with defamation offence. 
Since then, prosecution on expression via social media sites by the Computer Act has decreased in some ways. Those who wish to exercise legal prosedures have turned to apply criminal defamation offences instead. Many cases brought Section 326 and 328 of criminal code to prosecute, making it seems to clear that the aim of prosecution is to counter public criticism. Some cases are just filing the case only for keeping their image, or intend to silence people’s voice in lights of expression. And making more legal burden in order to increase costs for activists on important issues. 
Most cases related to public issues do not lead to punishment. They pose to the negotiation and withdrawal. Some cases, the court will not accept the accusation, or will dismiss them. For instance,
1. Tung-Kum Co.Ltd. sued young journalist and Thai PBS 
ThaiPBS TV broadcasts programme called ‘citizen journalists episode Huk-baan Jao-kong youth camp’ on 1 September 2015 with content regarding the environmental impact of gold mining at Amphoe Wang Sa Poong, Loei Province. Tung-Kum Co.Ltd, the owner of a mining concession, reported ‘Wunpen’ or ‘Ploy’, a high school student, whose voice appeared on the programme to Minburi police station. And filed the case to the Leoi juvenile and family court under defamation by publication offense. Meanwhile, the company also filed the case against ThaiPBS, journalists and administrators to the central criminal court under defamation by publication offense and under the Computer Act. Later, there was a compromise between two parties and the plaintiff withdrew the case.  
2. Sugar factory sued villagers 
On 11 November and 16 December 2016, villagers called ‘ Rak-num-uon group’ submitted a complaint to Umchan subdistrict administrative organization. Requested to suspend the operation of pioneering for the sugar factory project and the biomass power plants, which damaged public rails. Later, Thai Rung Rueng industrial Co.Ltd. , the owner of the sugar factory, filed the case against 21 members of Rak-uon group under defamation by publication offense. Finally, prior to preliminary hearing, the plaintiff company decided to withgrew 'for reconciliation'.
3. Internal Security Operations Command southern region sued human rights activists. 
Pornpen, a director of Cross Cultural Foundation, Somchai, president of Cross Cultural Foundation, and Unchana, the activist of ‘Duay-jai’ group in the deep south of Thailand were charged under defamation offense by Internal Security Operations Division 4 (ISOC) due to the preparation and dissemination the torture situation report in 2014-2015, which provides the interview with those who have been detained in military camps. Later, there was a meeting between two parties, and the ISOC has promised that they would file a withdrawal. 
4. Electricity Generating Authority of Thailand(EGAT) sued NGO.
Prasitchai, an environmental activist, posted on his Facebook criticizing the coal power plant construction project in Krabi Province and the operation of EGAT. He was reportedly charged by EGAT under defamation by publication offence from his posts, which were on 26 December 2016 and 13 January 2017.
5. Thamakaset chicken farm sued 14 Myanmar workers. 
In 2017, the 14 Myanmar workers revealed labour violations and filed a complaint to The National Human Rights Commission claiming that while working with the farm’s employer, workers must get to work from 7 am to 5 pm and work overtime from 7pm to 5 am without holidays. They are not allowed to leave the farm and they get wages only 230 baht per day. The employer, Thamakaket Company, sued 14 workers under defamation and notifying false statements to the official. The defendant fought the case, and finally, the court dismissed the case. However, Thamakaset has sued many more people under defamation. 
6.The Election Commission of Thailand sued the activists
Payao, Sirawich, Parit and other political activists had organised the event called an anti-cheating election, which requested for the more transparency for 24 March 2019 genral election. At the event, there were a raising signs which contained the content such as #Stopcheatingtheelection #RespectMyVote and #Henhuagoobang, together with shout out for evading the Election Commision. They read the statement calling for the Election Commission to reveal the results from each polling stations, and organised the campaign to let people sign the pettition to impeach the Election Commissioners from their position. After that, The Election Commision sued, then three of them were called to be informed of the charge under defamation by publication.
The better solution is to clarify the truth, not criminal defamation. 
Criminal defamation offense is not always a correct solution, on top of that, it causes a not only higher burden to those who express their opinion, but also unfriendly environment for rational discussion. For those who feel being accused by others incorrectly or unfairly, there are still many alternative measures to avoid the criminal proceedings. As follows; 
1. To clarify the truth. 
For those who are being accused unfairly and incorrectly, there is still an alternative option. To clarify is the key. Explanation of what is believed to be true or deliberating with the accuser. Particularly, in the age of social media, in which people enable to connect more equally. It is the place where people can comment or express their opinion. It would be the right solution not only for dealing with “the problem” if the communication occurs on the same platform, making the receiver can take all aspects prior to analysis and decide what to believe.
Sometimes, the allegations might have occurred by those who have more power such as the influencers, well-known people or mass media. The injured pereson has no ability to communicate back, so they can use another options.  
2. Reporting to the platform provider. 
For those who are being accused, they might report the issue to the online platform providers such as Facebook, Google, Twitter with explanatory reasons. Each administrators has different community rules for their users. This solution might not always be that fast enough because the service provider must respect the customers’ rights and make a decision carefully. But some users who are frequently reported with the same behavior on slaid others, the administrator will provide warning, access ban or access limit, or even delete some content or their accounts. 
Most of the time, reporters might not be informed that online providers have been gathering and handling many controversial issues because the providers intend to cover their process. Yet, submitting the report has no cost, which is easier than the prosecution. 
3. Civil defamation case
If those who are being accused think that the controversial criticism is a lie and causes intense damages and they intend to apply the law for recovering their injury, civil proceeding is worth taking an account. Since the civil proceeding will not provide unnecessary burden to the defendant. There is no need for bail request or no risk to be datained, which is beneficial to the defendant. The intention of this kind of proceeding focuses on the fact proof between two parties. If the controversial message is the lie, it is a guilt. But, if the message is true, there will not be guilt. There will be no state support, which avoided having an advantage over other parties. 
Once the final order notices that the defamation is truly done, the wrongdoer has to pay a compensation as money or public announcement of judgement. This kind of punishment seems more beneficial to the victim in lights of recovering reputation than taking the defendant to the prison. The injured person also has the rights to request for compensation regarding trial fees from the opposition. 
Article type: