Andy Hall : Published report on Finnwatch website
Latest Update: 17/07/2020
Defendant
Andy Hall
Case Status
On trial in Supreme Court
Case Started
2013
Complainant / Plaintiff
Natural Fruit Co., LTD. produces and exports canned pineapple and pineapple juice. The plant is located at Prachuapkhirikhan Province. Most of products are exported to Europe.
Table of Content
Andy Hall is a researcher and a human right defender, his study focus on the violation of human rights against migrant workers. He was sued after published a research on the violation of human rights against migrant workers in the international private label products in Thailand
This case started in 2013, the court accepted the case in 2015 and the witness examination began in 2016. The Court of the First Instance sentenced Andy to 150,000 baht fine 3 years in prison with suspension. Later, Court of Appeal dismissed the case.
Defendant Background
Andy Hall is researcher and human right activist which working for the right of migrant worker issue. He was a researcher at Mahidol University which researched for Finnwatch, non-profit organization of Finland. The research result indicates the violation of Human right of Natural Fruit Company.
Offense
Article 14 (1) Computer Related Crime Act, Article 326 / 328 Criminal Code
Allegation
From the details in database of Criminal Court were indicated that on 15 until 21January 2013, Andy hall has announced the research result from interviewing workers of Natural Fruit and to public. There were media and people attended the research result discussion. Media published and publicized on at least 3 websites. The company was accused in violation of human rights and labor rights such as hiring labor under aged 15, hiring labor under the Minimum Wage, no annual leaves and Bonus which was specified by law. Moreover Myanmar workers gave an interview that the Company has took their passport.
The defendant publicized the untruth information which caused the plaintiff to be hated or scorned from both inside and outside the country for those who consumed the information in document or computer. Therefore the plaintiff has filed a lawsuit for criminal defamation and Computer-related Crimes Act.
Circumstance of Arrest
No information
Trial Observation
No information
Black Case
อ.517/2556
Court
The Bangkok South Criminal Court
Additional Info
No information
Reference
Thailand: Criminal lawsuit lodged against human rights defender Mr Andy Hall, Frontline Defenders 26 February 2013 (access on 5 March 2013)
Information, Bangkok South Criminal Court, 4 February 2013 (access on 5 March 2013)
FCCT Bulletin, FCCT January 2013 (access on 6 March 2013)
21 January 2013
Andy Hall released the research related to the violation of human right of international labor problem in food product industry for export in Thailand at The Foreign Correspondents' Club of Thailand (FCCT). There were representatives of Natural Fruit company attended and denied all the research result without any giving an interview.
4 February 2013
Bangkok South Criminal Court has obtained the complaint from Natural Fruit Company, who filed a lawsuit against Andy Hall for publicized false information which is an offense under Section 326,328, 332, 90, 91of the Penal code and Section 3 and 4 under Computer Crimes Act.
11 April 2013
Bangkok South Criminal Court set the schedule for the second preliminary examination of the Natural Fruit Company vs Andy Hall case at 1.00 PM.
The Plaintiff submitted a request before the court to grant an authority to publishing a summon and a copy of criminal charge in the newspaper and to send to it to Andy Hall. The plaintiff also stated before the court that the accused had recently entered into and left Thailand (as shown in the papers from the immigration bureau) and a lot of photos of the accused could be seen during an activity on April 10, 2013 in Mahachai, Samut Sakorn Province. But the application was finally revoked.
In addition, the plantiff's lawyer also asked the judges for more time to search for Andy Hall's place of residence in Thailand in order to send the summons and a copy of the charge. If Andy Hall already left the Kingdom, the plaintiff will present the actual place of residence of the accused outside of the Kingdom to the judge.
The next preliminary examination of Andy Hall's case will be held on 7 May 2013 at 9.00 AM.
13 January 2015
Hall, accompanied by lawyers, went to report before the Bangkok South Criminal Court. He was released on bail worth 300,000 THB but his passport's seized also.
2 May 2016
Andy posted on his Facebook account informing that the court approved his business travel outside of Thailand to attend a meeting in Naypidaw, Myanmar.
Verdict
Verdict of the Bangkok South Criminal Court
The court found Andy Hall guilty in 2 different count and order to sentence him separately.
The first count was due to the publication of the report on Finn Watch website. Even though Andy hall claim that he only feeding Finn Watch with information without involving in the drafting or publicizing of the report but Andy agreed with Fin Watch to publicized information on website he was then accountable for putting in to computer system with information. With regard to information, Andy claim that he received information with regard to the abuse against migrant workers by interview 12 workers who work with the natural Fruit company but he neither had them to testify in the court as witness nor provide the court with sound record as evidence the court then see that Andy's argument was too weak.
Moreover, the prosecution also had former official of the Ministry of Labour who visit the Natural fruit company testify before the court that the ministry had perform inspection and found no major abuse as the defendant claim. the migrant workers who is working with the company also testify to the court that there were no such abuse in the factory.
the court also see that even though Andy hall claim that he had tried to contact with the company many time for a discussion before reveal the report but there was no response but the fact that Andy decided to publicizing report without asking for clarification with the Natural Fruit company could prove that Andy Hall did not care to taking in to consideration the rights of Natural Fruit Company who is subject of reveal. The court also insisted that the revie of human rights violation can be review but it must be in accordant with framework of Thai legal system as well as the rights of the reviewed subject such as the Natural Fruit company.
The court then fond Andy hall guilty under Computer-related Crime Act 14 (1) and Section 328 of the Criminal Code, defamation by means of publication sentenced to 2 years in prison and fine in the sum of 100000 baht.
The second offense was due to the dissemination of hard copy of executive summary of the report at the FCCT event, eventhought Andy Hall claim that he only responsible for arranging the event but the fact that he allowed the dissemination of document which deemed to be offense against the company in the event also made Andy responsible for defamation offense. The court found Andy guilty under section 328 of the Criminal Code sentenced to 2 years in prison and find in the sum of 100000 baht.
In total Andy will be sentenced to 4 years and fine in the sum of 200000 Baht. However Andy's testimony did benefit a proceeding the court then reduced the sentence by quarter Andy will be sentenced to 3 years in prison and fine in the sum of 150000 baht. Since Andy never served in prison and working in Human Rights filed which benefit society at large the court then suspend his prison sentence in a period of two years.
The court also ordered Andy to publish verdict in 3 different newspapers including Thairath, Bangkok Post and a local newspaper in Prachuabkirikhant for the period of 7 days after the day that verdict was read. Andy also have to publish a verdict in 3 different website including Prachatai, Finn Watch and website of the institute of the Institute of Population and Statistics Research at Mahidol University(IPSR) for 30 days since the day after the day that verdict had been read.
Verdict of the Court of Appeal
Based on the established facts, the defendant was contracted by Finnwatch to conduct a research on migrant workers working in the plaintiff’s factory and two other factories. Regarding the plaintiff’s factory, which produces canned pineapple for foreign export, the defendant interviewed migrant workers from Myanmar between September and November 2012. Then, a report was conducted and sent to Finnwatch. Significant research findings were provided and publicly available as follows.
The case has questions to adjudicate, according to the appeal of the defendant, whether or not the defendant collaborated with Finnwatch to commit an offense of defamation to the Plaintiff. It was deemed that the statement in the article contained in document No. Jor 2 stating that the Plaintiff’s company committed human trafficking; and violations of human rights and labor protection laws. The actions related to human trafficking and human rights violation are the infringements of people’s fundamental rights, which were protected by Thailand’s Constitution. The public or a concerned person who witnesses such allged violations has the right to inform the public of the fact about such actions.
On this matter, even the plaintiff had two witnesses, who were the company’s accountants, testifying that the Plaintiff had not conducted in such manner as the defendant had mentioned. But, taking into account the fact that the plaintiff carried on business as a limited company, it should produce their documents or name list of all its employees, such as their application forms, employment contracts, the registered application for employing foreigners etc. However, the plaintiff did not present such documents as additional evidence to support the testimonies. This argument was thus in the nature of only the unsupported testimonies of the two witnesses concerned.
The plaintiff also had a former government labor officer testifying as the plaintiff’s witness that in the beginning of 2013, he had been assigned to conduct investigation in regards to the labor abuse with the plaintiff’s workers. Yet, he found no offense under the labor protection law committed by the plaintiff. Further, the plaintiff had a social security officer testifying that the plaintiff had never been reported of committing any offense under the social security law. Apart from this, the plaintiff had a worker from the plaintiff’s company, who had, together with four other workers, been interviewed by the defendant, testifying that what they had told the defendant during his interview does not hold true.
Even so, the government office’s investigation was an official visit, rather than a fact-finding attempt. The plaintiff, when inspected, is unlikely to provide evidence or information, which could be against their own position, to a government officer. Accordingly, the real evidence or fact in relation to the plaintiff’s treatment of migrant workers is hardly accessible.
The plaintiff’s witnesses also provided facts which were in contradiction with evidentiary documents. The plaintiff’s site manager reported to the labor inspection officer that all 611 migrant workers employed by the plaintiff are those legally holding work permits, whereas in September 2012 there were only 407 insured workers, according to the plaintiff’s social security contribution document. Moreover, the fact that the plaintiff had 854 workers in total, only 611 of which were migrant workers, also indicated that the plaintiff still had approximately 200 other migrant workers who held no passport, work permit or were not been legally registered under labor law. This also corroborated with the evidentiary document (the memorandum of representative data report) showing that certain migrant workers of the plaintiff had not undergone due process under labor law and the wording “approximately 200 workers” stated thereupon was crossed out from such document.
Furthermore, it is established in the document (the memorandum of representative data report) that, when the workers were not required by the plaintiff to perform tasks, they were allowed to leave the work site earlier with no wage being paid, as the wage would be paid by the plaintiff only for the actual working hours which truly departed from the core principle of the labor protection law. In addition, despite the contract ensuring that employees were not required to work on holidays, there were however cases where the plaintiff postponed employees’ holidays by requiring employees to work and have a day off on the other day instead. This is equivalent to the plaintiff’s avoidance of complying with labor protection law, leaving no precise holidays to the employees or sometimes granting employees a holiday per week after six days of work, which is also in contradict with labor protection law.
On the issue of retaining employees’ passport, the plaintiff accepted that the passports of certain employees had been retained at the request of employees themselves for the convenience in contacting with immigration inspection office. However, in December 2012, the plaintiff returned all passports and work permits to the employees after defendant's interview. This signifies that the plaintiff did really retain the employees’ passports before that. Although the plaintiff sought to claim that the passports were retained at the employees’ request, made in the written form, the plaintiff failed to present such documents in order to prove as claimed.
The fact is further established that the plaintiff deducted certain expenses from employees’ wages. Not to mention about a shirt (158 THB), a cap (75 THB), and a hair net (22 THB) that employees were required to purchase from the plaintiff on the first working day, the expenses came from the working clothes and accessories provided by the plaintiff, including mouth mask, gloves, arm protection sleeves, overalls, ear plugs and face shield. Yet, it does not appear that the plaintiff provided all these clothes and accessories upon the written consent of the employees. Even worse, some employees, albeit being paid, were required to work overtime more than 36 hours per week, which exceeds maximum working hours prescribed under the labor protection law.
The plaintiff had 8 restrooms for male, 15 restrooms for female and 6 urinals. The fact that the plaintiff planned to increase the amount of restroom facilities as required by the law within one month confirms that the plaintiff did provide employees with inadequate restrooms and drinking water. As a consequence, the employees had to wait for a long period of time so as to use restrooms and have drinking waters.
During the cross-examination, the labor inspection officer, as a plaintiff’s witness, testified: (1) that the plaintiff did let employees to work overtime more than 36 hours per week; (2) that the plaintiff did deduct the employees’ wages for their overtime use of restrooms; (3) that the plaintiff did deduct the expenses of clothes and accessories from the employees’ wages; and (4) that the plaintiff did deduct the transportation fares from the employees’ wages. This is entirely inconsistent with the previous testimony in which this same witness testified that the plaintiff had not committed any violation of labor law. This witness shall then hold low probative value.
Even thought, the interviews with myamar workers were conducted but it was conducted in the work place with plaintiff's observation. Workers were unable to provide any fact against the employer. In addition, the fact that the plaintiff had not been reported of any misconduct regarding the social security does not conclusively indicate that the plaintiff’s treatment of employees complied with the social security law at all times.
A witness who was still the plaintiff’s employee at the testifying time shall not be recognized as an impartial witness, as the plaintiff could still exercise control and influence over them. Therefore, a hearing from this witness must be conducted with due regards.
The plaintiff also argued that certain evidentiary documents relied upon by the defendant were inadmissible before the Court, because such documents were not used by the defendant in the cross-examination of the plaintiff’s witnesses before. On this matter, the Court of Appeal then ruled out in favor of the defendant that such disputed documents could be relied upon by the defendant without any need to be used in the cross-examination of the plaintiff’s witness before.
With regards to the facts concerning the employment, the defendant engaged a team of 3 Burmese assistants for conducting interview with 14 plaintiff’s workers. The interview was recorded in form of audio files, CD-ROM disks as well as in the written form. Moreover, the defendant also had all interviewed workers sign their signatures in order to identify themselves as the plaintiff’s workers. For those workers who did not want to disclose themselves or did not bring the employee ID card with them, the defendant had those workers identify themselves by testing them with photos of the plaintiff’s factory picture instead. From this interview, the defendant was informed that all of the workers being interviewed entered into Thailand illegally. Some were brought in Thailand by the intermediaries, some possess passports, others have their passports which were retained by the plaintiff. The defendant also observed that most of the workers being interviewed appear child-like. One worker, among others, told the defendant that he was in the age of 15 and had been working with the plaintiff for two years already.
From the interviews with the workers, the plaintiff has 800 workers, 500 of which were from Myanmar. Approximately 200 workers who were from Myanmar did not have any identification documents. Their wages varied depending on the status of each worker, including whether they have work permit or not. No worker had been paid with the minimum statutory wage of 240 THB as required by law. Also, even if the statutory hourly overtime paid according to the law was stipulated at 45 Baht, the rates that the workers were actually paid were 30 to 35 Baht. Workers did not have annual leaves and holidays as well as bonuses. When the workers applied for a passport, they had to pay 5,000 to 6,000 THB for the advance payment made by the plaintiff, though the actual amount costed 700 – 800 THB. In order for the workers to pay back such payment, the plaintiff will deduct from their wages and retained passports of the workers. Although the workers paid up all amount required to the plaintiff, the plaintiff did not return their passports in order that the workers cannot change the jobs. In the case where a worker used the restroom for more than 10 minutes, or if a worker was sleepy, their wages would be also deducted. In addition, the workers were often forced to work overtime until 2 AM to 3 AM of the next day.
By this reason, the defendant believed that the workers he had interviewed spoke the truth. The fact that the defendant made an appointment with workers who used to work in the plaintiff's factory was confirmed by a testimpny of person working with the Migrant Workers' Right Network. This person testified that the defendant asked him to contact the workers working in the plaintiff's factory for interviews and to find out information about them. Those workers were 12 migrant workers, 10 men and 2 women. Therefore, it is established that the working procedure of the research is in accordance with the testimony of the defendant and in line with the plaintiff witness who had confirmed that the 12 Burmese workers were literally interviewed.
It is also believed that the defendant did really interview the plaintiff’s workers. Although the defendant could not bring the workers he had interviewed to testify before the Court because some of them had returned to Myanmar, or gone to work somewhere else, or feared that they might break an oath they had sworn, the defendant had three Burmese witnesses, who used to work for plaintiff, testifying the same fact that could be concluded in the same manner as the interviews conducted by the defendant. Therefore, those three Burmese witnesses could be deemed as having no conflict of interest in this case, were neutral witnesses and thus were admissible before the Court. Accordingly, the evidence adduced by the defendant was reasonably well-grounded enough to establish that the plaintiff had really mistreated migrant workers as described in the research findings.
Consequently, the defendant further produced and presented to Finnwatch a report on 32 workers from three factories: The two tuna factories responded by inviting the defendant to visit their factories and the defendant and Finnwatch had been in conversation with the two factories for a month. Whereas the plaintiff, whom the defendant had attempted to get in touch with via emails, telephone calls and faxes, did not reply.
When Finnwatch had received the research study, the said report had been read, analyzed again and then made into a summary. After that, Finnwatch contacted the plaintiff again by email, faxes, and telephone calls so as to allow the plaintiff clarify the said findings. But the plaintiff did not reply.
A staff member of Finnwatch then made a document and sent it via email to various agencies which were directly responsible for the examination, protection and promotion of labor rights and posted the said document on Finnwatch’s website as well as held a press conference on 21 January 2013 where the defendant was assigned to participate to present the information that the workers gave to him.
Even though the plaintiff claimed that no contact from either the defendant or Finnwatch had been made, the plaintiff’s witness testified at the preliminary examination stage that the email address, to which the defendant had been trying to contact, was actually the email address of the plaintiff’s marketing office. Taking into account the fact that apart from the plaintiff’s company, the defendant had also sent email messages about the research to the other two factories which well received all contacts from the defendant and even agreed to have the defendant visited the factories and talked to their executives. It is thus believed that the plaintiff had also been contacted by the defendant, but the plaintiff preferred to ignore in working with the defendant to examine the facts and address the problems.
The aforementioned facts demonstrate that the defendant and Finnwatch had been interested in listening to the plaintiff’s fact and explanation, which was a well-rounded and fair approach to hear all sides information.
Furthermore, the fact that Finnwatch contracted the defendant to conduct this research was to find out whether or not there had been any human rights violation in the plaintiff’s factory. This is because Finland focused on the safety of the goods. It is necessary for the consumers to know where the goods came from as per the standards of the International Labor Organization (ILO). Therefore, Finnwatch could be regarded as a representative of the consumers to engage in examining the fact about the said issue. Accordingly, when Finnwatch was aware of the information about the plaintiff’s mistreatment of its migrant workers, the fact that Finnwatch disseminated via email regarding the said information in the form of document to various responsible agencies as well as held the press conference is beneficial to the public. Any person or those concerned held the right to do so that the problems could be solved in the future.
The act of Finnwatch was thus deemed as an expression of opinion or statement in good faith, by way of self-justification or defense for the protection of legitimate interest and by way of fair comment on any person or anything to which the public would appropriately conduct as prescribed in Section 329 (1) and (3) of the Criminal Code. The appeal of the defendant was admissible and there was no need to further adjudicate whether or not the defendant cooperated with Finnwatch in the said act.
During the hearing in the Court of Appeal, the amendment to the Computer-related Crimes Act had been promulgated. The amended Section 14 provided that the person entering the wholly or partially distorted or false computer data into a computer system must have specific intention, that is dishonest and deceptive, and such act shall not include the use of a computer or a computer system as a means of committing an offense of defamation. The plaintiff’s statement of claim only stated that the defendant and Finnwatch had entered the false information into a computer system which tended to defame the plaintiff. For this, the act of the plaintiff to enter the distorted or false computer data into a computer system herein is no longer an offense because the amendment to the Computer-related Crime Act is enacted to revoke the defamation offense from Section 14. Consequently, the Court of Appeal disagrees with the judgement of the Court of the First Instance to punish the defendant on this defamation charge under the Computer-related Crime Act.
The decision is overturned and the case is thus dismissed.