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Case
Stared
Case name
Thai Royal Navy vs Phuketwan news agency
Defamation
Name of persons / Name of Media
Big Island Media Co., Ltd.
Case status
คำอธิบายสถานะคดี ภาษาอังกฤษ
Judgment / End of trial
Status of Accused
Dismissed
Offense / order
Article 14 (1) Computer Related Crime Act, Article 326 / 328 Criminal Code
Summary
Journalist and editor of Phuket Wan, a small local English news website in Phuket were charge with Defamation and with section 14(1) of Computer-related Crime Act for publishing article accused the Thai Naval Force for involved and benefit from a Traficking of the Rohingya.
The defendants argued that the news published on its website was actually refered to the finding done by Reuters, It had no intention to ruin reputation of the Royal Thai Navy but rather to carried out its journalism. Moreover, when the navy publish its clarification on the report, Phuket Wan also publicized the Navy's statement
Basic information
Background of accused
The defendant no. 1: Big Island Media Co., Ltd.
Big Island Media Co., Ltd., the company who run the news website, Phuketwan, was established by Alan Morison. He is also managing director of this company.
Big Island Media Co., Ltd., was founded in 2004. Initially, the company published magazines for Laguna hotel. On January 1, 2008, the company opened the English news website, Phuketwan, which was the first news website of Phuket island.
Phuketwan reported news regarding tourism, property, restaurants, labor, including crimes and corruption. Phuketwan wishes that news on its website will benefit to both Thais and foreigners and be a part of the development of quality of life on the island.
The defendant no. 2: Alan Morison
Alan is an Australian journalist. He was 65 years old at the time of his prosecution.
In the past, Alan ever worked with other international media such as The Age, Australian newspaper, and CNN (Hong Kong).
Alan has come to Thailand since 2002 and started working with Phuket Gazette, which was the only one mass media on Phuket island at that time.
In 2004, Alan founded Big Island Media, Co., Ltd. In 2008, he opened the news website, Phuketwan, which was under administration by Big Island Media, for creating an alternative media for people on the island to get news.
Nowadays, Alan is a journalist for Phketwan website.
The defendant no. 3: Chutima Sidasathian
Chutima has been a journalist for Phuketwan website since 2009. She was 31 years old at the time of her prosecution.
Chutima got the Bachelor’s degree in Liberal Arts from Phuket Rajabhat University and Master’s degree in Political Science from Ramkhamhaeng University.
Nowadays, Chutima studies at the faculty of Liberal Arts, Asian Study, Walailak University.
Chutima is a journalist who is interested in human rights and human trafficking. Her Doctoral Degree thesis is about Rohingya migrants.
In addition, Chutima is also a special lecturer at Walailak University.
The Royal Thai Navy authorized Capt. Panlop Komlotok to file a lawsuit.
Legal Claims
Defamation
-
Form of restriction on freedom
Charge filed
-
Type of media
Website / Blog
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Province
Phuket
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Court
Phuket Provincial Court
-
Black case
คำอธิบายคดีดำ ภาษาอังกฤษ
No: 2161/2557 Date: 2014-04-17
Details of offence according to charge
On 17 July 2013, the three defendants buckled to libel the Royal Thai Navy (RTN) by means of publishing the English article, “Thai Military Profiting from Trade in Boatpeople, Says Special Report”, on the Phuketwan website. In addition, there was a message referred from Reuter’s report which said that “The Thai naval forces usually earn about 2,000 baht per Rohingya for spotting a boat or turning a blind eye, said the smuggler, who works in the southern Thai region of Phang Nga (north of Phuket) and deals directly with the navy and police.” The aforesaid message means that the RTN get benefit from trade in Rohingya boatpeople. The aforesaid message was false and defamed the RTN’s reputation.
The three defendants buckled to import the aforesaid message to the computer system via the internet system by means of publicizing the article on Phuketwan website.
Circumstance of arrest
Police brought the arrested warrant to Alan and Chutima, the accused, at the Phuketwan office and made an appointment with them to report themselves to an inquiry official at Wichit police station, Phuket province.
Progress of case
17 July 2013
The news website, Phuketwan, published news referring to the Reuter's report accusing theRoyal Thai Navy (RTN) involvedand gained benefits fromRohingya human trafficking network. The Reuter’s report collected information by interviewing survivals of sea voyages, and persons who involved with human trafficking. It also stated that RTN would earn 2,000 Baht per Rohingya for allowing traffickers to bring Rohingya to the shore without being arrested.
16 December 2013
RTN authorized Capt. Panlop Komlotok to file a lawsuit against Big Island Media Co., Ltd., the company which runs Phuketwan news website, Alan Morison, the editorof Phuketwan, and ChutimaSidasathian, a journalist, for defaming RTN and for the wrongdoings under Section 14(1) of the 2007Computer Crimes Act (CCA).The summons was issued by Wichit Police Station, Mueang District,Phuket Province. Both accused came to hear the formal indictmentunder the summons on 24 December 2013, at 1.00 pm.
18 December 2013
The news website, Phuketwan, made a statement related to the lawsuit. A part of its statement mentioned that RTN inspired Phuketwan to pay attention to Rohingya refugees. When RTN was accused of being cruel to Rohingya refugees, Phuketwan defended that it wasn’t RTN, but other Armed Forces.
Phuketwan and RTN had always cooperated. This lawsuit was a shock to them. The report that led to the accusation wasn’t Phuketwan’s but it was prepared by a well-known international news agency, Reuter.
At the end of the statement, Phuketwan questioned RTN that why they decided to file a lawsuit against the website’s journalists instead of talking on the telephone or holding a press conference.
19 December 2013
The Southeast Asian Press Alliance (SEAPA) made a statement condemning that the lawsuit was a bully’s strategy to silence critics against small media such as Phuketwan, who published critical stories against state authorities. SEAPA pointed out another approach that RTN should have done. It was to allow or to conduct an impartial official investigationinto the matter of complicity on the crimes of human trafficking against Rohingya refugees.
27 December 2013
The Office of the United Nations High Commissioner for Human Rights (OHCHR) made a statement that criminal prosecution for defamation has a chilling effect on press freedom, and international standards are clear that imprisonment is never an appropriate penalty for defamation. OHCHR also urged the Government of Thailand to drop the charges against Alan Morison and ChutimaSidasathian and to ensure press freedom in the country.
10 March 2014
The prosecutor scheduled for hearing the formal complaint (postponed to 17 April 2014)
11 March 2014
Media, Entertainment and Arts Alliance (MEAA), who were the union and professional organization which covers everyone in the media, entertainment and arts industries based in Australia, protested in front of the Royal Thai Consulate General, Melbourne, Australia, and demanded the Thai government to drop charges against Alan Morrison and Chutima Sidasathian.
4 April 2014
Alan, Chutima and their lawyer team handed a complaint letter to the Office of the National Human Rights Commission of Thailand (NHRC) Committee, reasoning that CCA violated the rights of reporting news.
The complaint was about the prosecution under Section 14(1) of CCA, which was a crime that involves import to a computer system of forged computer data. It was a misused legal enforcement and was in contrast to the spirit of law. CCA was enacted to solve computer crimes but the recent law enforcement was more for criminal defamation.
For Phuketwan’s case, this law enforcement was a great threat to media freedom. Because the CCA carries both a term of imprisonment and a fine that are more severe than ordinary criminal defamation cases and parties in a lawsuit can’t negotiate. So they complained the officials’ consideration in enforcing this law to the NHRC Committee.
Dr. NiranPitakwatchara, M.D.,a NHRC Commissioner, took the complaint letter for consideration.
17 April 2014
The prosecutor scheduled for prosecuting at Phuket Provincial Court.
22 May 2014
Alan,Chutimaand their lawyer team handed a complaint letter to the Law Reform Commission of Thailand (LRCT), asking to investigate whether CCA violated the media freedom, and whether CCA had problems with its own and its enforcement. SuneeChaiyarose, Vice-President of LRCT took the letter.
26 May 2014
Preliminary Hearing
The defendants denied all charges. The Court scheduled for the testimony of plaintiff’s witnesses on 18 March, and the defendants’ witnesses on 19 – 20 March 2015.
7 July 2014
Alan and Chutima negotiated with RTN and NHRC Committee was the mediator.
Alan said that the court restrained his visa, and his passport was confiscated since December 2013. Alan wasn’t able to work in Thailand. Phuketwan news website would be ended in February 2015 or one month prior to the prosecution.
Alan added that it wasn’t common that Armed Forces would file lawsuit against media. Some private development organization(PDO) believed that this lawsuit tried to cover up reporting Rohingya’s issues.
Chutima, another defendant, tried to explain that the phrase “Thai naval forces” in the article didn’t mean the RTN. But it did mean other departments of armed officials who involved. Moreover, the original English article didn’t mention RTN. But the police and prosecutor accused that the phrase “Royal Thai Navy” was mentioned three times.
10 September 2014
Phuket Provincial Court rescheduled the dates for the testimony of the plaintiff’s and the defendants’ witnesses, from 18 – 20 March 2015 to 14 – 16 July 2015 because there were many cases being on trial in the court at that time, and the Chief Judge agreed to postpone.
21 October 2014
Third Naval Area Command informed media in Phuket province that Third Naval Area Command would not give any comment on Phuketwan case. Moreover Third Naval Area Command prohibited Phuketwan’s journalists were prohibited from coming to the area for reporting news because the dispute and the lawsuit were still processed and Phuketwan’s report on Rohingya’s issues damaged RTN’s reputation.
Third Naval Area Command also sent letters to Phuket Provincial Public Relations Department, and to the President of Phuket media club.
6 October 2014
Board of Justice Fund sent the letter on reporting Justice Fund’s grant resultto Chutima.
Board of Justice Fund agreed not to approve Justice Fund’s money or expenses to be used as security for provisional release application.
The Board concluded that the prosecutor would file charges, and Chutima, as a professional journalist, should have checked the information before releasing to the public.
When Chutima released the report that later damaged the RTN’s reputation, it wasn’t according to the Justice Fund’s regulations, procedures and conditions to support the grant for provisional release application. So money or expenses wasn’t approved as requested.
23 January 2015
Chutima handed a complaint letter to a representative of National Council for Peace and Order (NCPO) at the Government House. It demanded RTN to drop both defamation and CCA charges, which were filed to Phuket Provincial Court. The letter stated that this was a case of threatening the press freedom of reporting information and giving opinions, which were for the public to acknowledge, to follow, to investigate and to observe. All would bring to problem solving.
It wasn’t for the Nation’s and society’s general interest when RTN filed criminal charges against them.
30 June 2015
PEN International made a statement that Charges of criminal defamation and computer crimes against two Phuketwan journalists are a brazen attempt to stifle investigative reporting into human rights abuses against ethnic Rohingya migrants in Thailand. Pen also concerned that although the case was filed under the previous civilian government, it has been kept active by the military administration that came to power following a May 2014 coup resulting in a broad crackdown on civil society and individual expressions of dissent.
9 July 2015
8 international human rights organizations - Human Rights Watch, Amnesty International, Federation for Human Rights (FIDH), Southeast Asian Press Alliance (SEAPA), Forum Asia, ASEAN Parliamentarians for Human Rights, International Commission of Jurists (ICJ) and World Organization Against Torture (OMCT) sent an open letter to General Prayuth Chan-ocha, Prime Minister of Thailand, to urge the Thai Government to drop criminal charges against two Phuketwan journalists who wrote the report on the trafficking of the Rohingya.
8 international human rights organizations stated in the letter that two Phuketwan journalists were charged unfairly because they have played a vital role in uncovering the trafficking of Rohingya. Moreover, criminal prosecution of speech and computer crime charge are a violation of international law, Article 19 of the International Covenant on Civil and Political Rights (ICCPR).
Moreover, 8 international human rights organizations suggested that Thailand should abolish criminal defamation law because its penalty is always a disproportionate means to protect against reputational harm and pose an impermissibly severe impediment to the exercise of free expression.
14-16 July 2015
Witness hearings at Phuket Provincial Court.
1 September 2015
The Phuket Provicial Court read the verdict dismiss the case.
15 January 2016
After the public prosecutor extended the time period to cosider whether to lodge an appeal against the verdict for 2 times. The case brought by the Royal Thai Navy against two Phuket journalists appears to have ended with the passing of a deadline for an appeal by the prosecutor at 4pm today.
The Verdict
Summary of verdict of Phuket Provincial Court
The first issue to be considered is whether or not the Royal Thai Navy is the injured person and has the authority to file the complaint. To file a complaint, the Navy Chief authorized Navy Captain Pallop Komalotok to file a complaint against the three Defendants.
Navy Captain Pallop testified during the cross examination that they did not wish to litigate the three Defendants in relation to the headline but merely the detail in the news paragraph. Navy Captain Pallop testified that the term “กองทัพเรือ” referred to the Royal Thai Navy in English and thus the term “The Thai naval forces” in the report did not refer to any specific agency but meant the naval force that has the duty to patrol the water ways which could be the Royal Thai Navy, the Marine Police or the water ways patrol section of the Internal Security Operations Command (ISOC). The three Defendants used the word “forces”, which is a plural form thus referring to several agencies as aforementioned, and the general public could understand that it included the Royal Thai Navy. Accordingly, the Royal Thai Navy can be the injured person and has the authority to file the complaint
The 3rd Defendant had argued since the inquiry stage that the translation was not correct as in English there was not any statement indicating the Royal Thai Navy. Mr. Wannasan Noonsuk, an expert witness graduated with a doctorate degree from Cornell University in the United States of America, translated the statement in question different from the cmoplaint. With respect to the discrepancy in translation, the Court has decided upon the matters of the injured and the prosecution power.
The second issue to be considered is whether or not the act of the three Defendants is the offence of defamation by means of publicizing as charged.
It is considered that Reuters News Agency is a trustworthy source of news, worldwide accepted, and verifiable. It is believed that the news reporter of Reuters has verified the fact of the news. Furthermore, the content that the 2nd and the 3rd Defendants publicized on the website, when read thoroughly, has several parts which state that it was reported by Reuters News Agency and it is neither the fact nor opinion written by the three Defendants. The content of the news in the complaint is the same as that appeared in the news article of Reuters News Agency. Accordingly, the act of the three Defendants is not considered the offence of defamation by publicizing under Criminal Code Section 328 as charged.
The Third issue to be considered is whether or not the act of the three Defendants is the offence of importing false computer data to the computer system pursuant to the Computer-related Crimes Act.
The three Defendants brought from Reuters News Agency the news article stating that the Thai naval forces usually earned money from omitting to perform duty related to the trafficking of Rohingyas in the area of Phang Nga does not appear to contain any forged or false computer data as prescribed in 14(1). Such news report is not false data that is likely to cause damage to the national security or cause public panic under 14(2) and is not the offence against the security of the Kingdom or the offence of terrorism under the Criminal Code pursuant to 14(3). The intent of Article 14 of this Act is not to punish a person who commits the offence of defamation by publicizing. As a matter of fact, the offence of defamation by publicizing is specifically stipulated in the Criminal Code. Therefore, the act of the three Defendants does not constitute an offence under the Computer Crime Act.
The case is hereby dismissed
Trial observation record
17 April 2014
The prosecutor scheduled for prosecuting at Phuket Provincial Court.
Alan and Chutima arrived at Phuket Provincial Court at 9.00 am. Before their arrival, there were about 15 – 20 Thai and foreign press waiting there. As soon as Alan and Chutima arrived, they rushed to take photos and interview. Then the Court’s security guards informed the press that taking photos weren’t allowed without permission. However another officer came to inform and to allow taking photos, but photos of Court’s signs or names mustn’t be taken.
Alan and Chutima gave an interview as follows;
Chutima said that she was sad for being prosecuted, because Phuketwan and RTN worked together and had strong relationship. And filing charges based on CCA and criminal defamation was in contrast to the spirit of law. CCA was enacted for the wrongdoings of computer system or technical problems. It wasn’t for controlling content.
On the other hand, CCA carries more severe penalties than ordinary criminal defamation cases. The use of CCA was to limit press freedom. Chutima added that not only Phuketwan, but other Thai media, namely ASTV Manager, T News, and Thai Post also referred to Reuter's report. But Phuketwan was the only one being charged. The RTN filed a lawsuit against Reuter too, but there has been no progress.
Alan said that after being prosecuted, he had always been discussed with Reuter. But after December 2013, there was no connection between them. Being prosecuted, Alan was sad and shocked. The RTN was an honorablegovernment sector but they used troublous CCA to charge journalists. It was to limit opinions, which shouldn’t have happened to a democratic nation.
Alan said that he had work in field of journalism for many years in Thailand and abroad. He has never been prosecuted. He would have talked on the telephone to concerned parties when problems occurred. Alan thought that the RTN didn’t know the affect of this case, and that there were only a few RTN personnel who supported to put the case forward.
After the interview, Alan and Chutima walked to the Court. There were some journalists followed them. A court officer talked to them and advised them on how to file a provisional release application. While an officer from Australian Embassy arrived and talked to Alan.
About 10.30 am, which was an hour late for the schedule, officers from Office of The Attorney General arrived at the court to prosecute the defendants instead of the prosecutor. Alan and Chutima were escorted to the basement of the Court to be detained while waiting for the court order for the release. The security that their lawyers applied was a 200,000-Baht Savings Certificate from Government Savings Bank. The Savings Certificate belonged to the center of law and the rights of communities in the area of the Andaman Sea.
Alan was a foreigner so he had to not only submit the security for provisional release application but the owner of the Alan rented home also certify Alan’s residence in Thailand. About 11.30 am, the owner arrived and talked to the lawyer about the document that needed certification. The owner was worried that the document would trouble him, should Alan flee. The lawyer had to explain for a while that the document was only to certify Alan’s residence, and there was no strings attached, even Alan had fled.
It was lunch break after filing the application. The court officer informed the defendants’ lawyer that the court order would be issued in the afternoon. Alan and Chutima still had to wait in the cells. Around 3.00 pm, journalists and observers who had to catch a flight back on the same day were getting worried. They were afraid they had to wait for the court order and miss their flights. Reuter’s reporter decided to call and change the flight, because of the time was running out. When 15.30 am, Phuket Provincial Court granted the provisional release to both defendants. The order also scheduled the pre-trial hearing at Phuket Provincial Court on 26 May 2014, at 9.00 am.
The accusation stated that the defendants committed defamation by means of publication under Section 326 and 328 of the Criminal Code and they committed importing false data to a computer system, and published or forwarded the computer data that they had known it was false, according to Section 3 and 14 of the CCA. Furthermore, if the Court found the defendants guilty, the defendants had to publish the whole or part of the judgment in one or more newspapers at the expense of the defendants according to Criminal Code, Section 332.
After the release, Chutima said that she was happy to be released and to be free after more than 5 hours of detention. She wasn’t worried about being detained because she was ready for it. It was a notion not to use her personal money to bail herself out. She wanted the public to understand that this case limited media freedom, even though the accusation hurt her emotionally. For future plan, she would prepare document for defending herself. Chutima said that the lawsuit has somewhat affected her media work. This was because she had to prepare to defend, and she couldn’t focus on her work properly.
