Thai Defamation Laws and the U.N. Guiding Principles on Business and Human Rights
DRAKE STOBIE ∙ March 29, 2022 ∙ ARTICLE
Thammakaset Company Limited, a Thai poultry producer, has faced complaints by workers surrounding wages, working conditions, confiscation of documents, and other abuses.[1] Thammakaset did not address these criticisms in good faith. Instead, Thammakaset sought to utilize Thailand’s legal system to silence critics and quell dissension through filing several Strategic Lawsuits Against Public Participation (SLAPP) to punish and disincentivize criticism of the company.[2]
While harsh, this is not simply subjective editorialization. Thammakaset has a reputation for engaging in defamation prosecutions against workers, activists, and human rights watchdogs for criticizing its practices. According to the International Federation for Human Rights, Thammakaset filed 39 cases against a variety of defendants as a result of their “documentation, communication and advocacy in connection with labour rights violations.”[3] Amongst those defendants include migrant workers, labour rights defenders, academics, human rights defenders, and Voice TV (a media company).[4] The offenses are mainly composed of sharing information on social media, testifying in court, and providing inspectors information.[5]
There is a clear duty in the UN Guiding Principles on Business and Human Rights placed on governments to ensure legal systems foster an environment in which human rights are respected. First, Guiding Principle 1 describes the state duty to provide protection against human rights abuses, including those conducted by businesses, through prevention, investigation, punishment and redress.[6] Additionally, Guiding Principle 26 lays out the importance of access to remediation for abuses.[7] These duties are both prospective and retrospective as the principles emphasize the importance of prevention and remediation of human rights abuses working in tandem.[8] The intersection of these principles places a responsibility on governments to maintain a legal system that allows for adjudication of human rights claims. Specifically, the principles place an emphasis on access to remedy for business-related human rights abuses, and emphasizes consideration of legal, practical, and other relevant barriers.
While there are ways to seek remediation, Thailand’s judicial mechanisms also provide ways in which companies can weaponize Thai law against workers and activists. Specifically, the facet of the criminal code allowing private actors to bring prosecutions directly to Thai courts allows for exploitation of the Criminal Code and undermines the law’s intention of providing a remedy to victims. This subverts the legal system’s remediation processes and serves as a deterrent against other complaints.
Thammakaset has specifically invoked Sections 326 and 328 of the Thai Criminal Code. Section 326 deals with slander, prescribing punishment of “imprisonment not exceeding one year or fined not exceeding twenty thousand Baht, or both.”[9] Likewise, Section 328 deals with libel, prescribing punishment of “imprisonment not exceeding two years and fined not exceeding two hundred thousand Baht.”[10] Cases brought under these laws are distinct from defamation suits brought under the Thai Civil and Commercial Code, which has less severe penalties and different standards for adjudication. The implication of these laws is that companies could use the threat of prosecution to deter criticism of the company, thus undermining the UNGPs by enshrining a domestic legal system that discourages victims of abuses from seeking remediation.
Acknowledging the Guiding Principles, Thailand constructed a National Action Plan to address a variety of issues that implicate business and human rights. Among these were recommendations to reform the Criminal Code to allow more discretion for courts in dealing with anti-SLAPP lawsuits. Section 161/1 was meant to prevent use of the law to “bully” people and combat bad faith prosecutions.[11] Section 165/2 seeks to level the playing field for defendants in preliminary hearings.[12] While the plan provides methods to address abuse of defamation prosecutions, more work should be done. Sections 161/1 and 165/2 were touted in the National Action Plan,[13] but a report by Article 19, an organization for defending freedom of expression, finds that Thai judges have refused to consistently apply those measures in these types of cases.[14] The Thai government thus needs to be more vigorous in ensuring that the National Action Plan is implemented.
Private actors can bring prosecutions in court by either contacting the police or initiating cases themselves. These types of cases have proliferated, and conviction rates are high, even topping 80 percent.[15] Thammakaset has uniquely exploited this system to act against critics, with several prosecutions being brought solely on the basis of social media activity.[16] While Thammakaset has repeatedly failed to win convictions, the harm is not necessarily in the convictions; rather, it is through the threat of criminal litigation and expenses associated with it. While this system thus facially ensures an effective system of remediation, it is counter-productive because many victims are reluctant to bring claims in the first place. The report concluded that “Expenses associated with these proceedings have often been paid out of the pocket of the accused. Long and exhausting legal battles based on criminal defamation accusations create an atmosphere of fear and self-censorship.”[17]
Likewise, Thailand is also party to international law that should reinforce these protections. Thailand ratified the International Covenant on Civil and Political Rights (ICCPR) in 1996.[18] The Human Rights Committee, after comprehensive review, prescribed that Thailand should ensure it adheres to Article 19’s tests of necessity and proportionality, endorsed consideration of decriminalizing defamation, and encouraged training for judges and law enforcement to guarantee freedom of expression.[19] Article 19(2) of this treaty grants protection for freedom of expression.[20] The UN Human Rights Committee issued General Comment No. 34, which describes a three-part test to assess compliance with the ICCPR:
First, the restriction must be provided by law. Second, it must be made in pursuance of one of the purposes laid out in paragraph 3 of Article 19: to protect the rights or reputations of others, national security, public order, public health, or public morals. This is a comprehensive list; no other government interests can justify a restriction of free expression. Third, the restriction must be necessary and proportionate to achieve its protective function.[21]
While this framework has not been incorporated into international law regarding business and human rights specifically, it does provide guidance on ways in which governmental responsibilities could be evaluated. The Human Rights Committee’s report validated this framework, especially adherence to the tests of necessity and proportionality,[22] and thus supports the contention that this framework should be adopted to review systemic human rights abuses in a business context.
I argue that Thailand has flouted international law by allowing its legal system to silence activists, journalists, and workers. While the restriction is provided by law and there is a purpose (protection of reputation), the restriction is not necessary or proportional. Defamation suits can be pursued through the Civil Code, rendering criminal prosecutions unnecessary. Likewise, imprisonment is not a proportional remedy for defamation, especially given that there are remedies available through the Civil Code that are touted there as appropriate. This regulation, therefore, is not strong enough to overcome the protection of Article 19(2) of the ICCPR.
Moreover, UN Guiding Principle 26 prioritizes ensuring access to remedy for business-related offenses. While defamation suits could be an effective tool to deter abuses, in this context business has weaponized these suits to silence criticism. As a result, the Criminal Code’s defamation law achieves the alternative result by deterring workers, activists, and journalists from speaking out against businesses. This is critical as the Guiding Principles emphasize practical barriers to remediation, not just legal barriers. Additionally, the code itself arguably shifts the burden of proving innocence to the accused, providing ample room for exploitation.[23] Specifically, the code does not allow truth to be used as a defense for statements regarding “private matters,” a term vague and open to abuse.[24] While a provision was added via amendment in 2017 to provide a defense for public criticism made “in good faith,” the burden falls on defendants to prove that statements were made in good faith. As a result, the exploitation of criminal defamation laws has continued.[25]
However, Thailand may have a case for the defense of its legal system against these criticisms. Without an anthropological assessment of the necessity of the law within Thailand, it is presumptuous for outsiders to argue that Thailand should discard the law outright. Thammakaset itself has not had much success with winning these cases,[26] so the Thai legal system can claim that it does not systematically prosecute critical workers. While the Human Rights Committee has argued that defamation should be decriminalized, it is possible for the government to improve the situation through striking a greater balance between interests of businesses and workers. First, the government must recognize that the burden of criminal prosecution is greater on individual workers and activists than for well-financed businesses that can afford to pursue multiple prosecutions with high-quality representation.[27] Second, the government can adapt the enforcement of the law to recognize the resource disparity to ensure that a law that is nominally balanced can have a more functionally level playing field. Finally, the government should take the Human Rights Committee’s report into consideration and evaluate the necessity of the criminalization of defamation, and barring that, the necessity of imprisonment as an appropriate remedy for defamation.[28] These changes would allow for adherence to UNGP 26’s emphasis on practical barriers to remediation while fulfilling UNGP 1’s state duty to protect against business-related human rights abuses. Thailand should implement these changes in a way that makes sense to the domestic political and cultural environment to ensure effective implementation.
[1] Joint Letter to the Government of Thailand, (Oct. 26, 2020) https://www.hrw.org/news/2020/10/26/thailand-end-harassment-suchanee-cloitre#; see also Kate Hodal, Workers Claiming That Had to Sleep with Chickens Face Thai Court Charges, The Guardian (June 6, 2017) https://www.theguardian.com/global-development/2017/jun/06/workers-claiming-they-had-to-sleep-with-the-chickens-face-thai-court-charges-burmese-migrants.
[2] Jennifer Hattam, See You in Court: A Rise in Legal Attacks Against Rights Defenders Aims to Silence Corporate Critics, Equal Times (June 8, 2020) https://www.equaltimes.org/see-you-in-court-a-rise-in-legal?lang=en#.YZOs82DP02w.
[3] Int’l Fed’n for Hum. Rts., Thammakaset vs. human rights defenders and workers in Thailand, Thammakaset Watch (No. 1, 2021), https://www.fidh.org/en/issues/human-rights-defenders/thailand-thammakaset-watch
[4] Id.
[5] Id.
[6] U.N. Guiding Principles on Business and Human Rights, ¶ 1, U.N. Doc. HR/PUB/11/04 (2011)
[7] Id. at ¶ 26.
[8] Id. at ¶ 1.
[9] Criminal Code § 326 (Thai.).
[10] Criminal Code § 328 (Thai.).
[11] 1st National Action Plan on Business and Human Rights, 105 (2019) (Thai.).
[12] Id. at 10.
[13] Id. at 105-06.
[14] Article 19, Truth Be Told: Criminal Defamation in Thai Law and the Case for Reform 9 (2021)
[15] Id. at 4.
[16] Id.
[17] Id. at 15.
[18] Id. at 10.
[19] Human Rights Committee, Concluding Observations on the Second Periodic Report of Thailand, U.N. International Covenant on Civil and Political Rights (Apr. 27, 2017).
[20] International Covenant on Civil and Political Rights, art. 19(2) Dec. 16, 1966.
[21] Article 19, supra note 14, at 10.
[22] Human Rights Committee, supra note 20.
[23] Article 19, supra note 14, at 11.
[24] Id.
[25] Id.
[26] Grant Peck, Litigious Poultry Farm Loses Defamation Cases in Thailand, Associated Press (June 8, 2020) https://apnews.com/article/f3bb2ae8032c6bd54b192d5d022b949e.
[27] Article 19, supra note 14, at 15.
[28] Human Rights Committee, supra note 20.