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Alert

ARTICLE 19 voices concern over criminal court's decision to accept jurisdiction for a criminal libel action

(ARTICLE 19/IFEX) - The following is a 24 June 2004 ARTICLE 19 letter to Boonklee Plangsiri, chief executive officer of Shin Corporation Public Company Limited:

24th June 2004

Mr Boonklee Plangsiri
Chief Executive Officer
Shin Corporation Public Company Limited
414 Phaholyothin Road
Phayathai, Bangkok
Thailand
Fax: 66-2-2995039

Copied to Prime Minister Thaksin Shinawatra

OPEN LETTER

Dear Mr Plangsiri,

I am writing on behalf of ARTICLE 19 to express my concern about the decision by the criminal court in Thailand to accept jurisdiction for a criminal libel action against media campaign reformer Supinya Klangnarong, a local newspaper and three of its editors. The suit was brought by your Corporation, and we strongly urge you to withdraw it in the interests of protecting freedom of expression.

We understand that the defamation charges in question were brought by you after the newspaper published a story by Supinya Klangnarong, alleging that your Corporation, which is owned by Prime Minister Thaksin Shinawatra's family, has unduly benefited from some of the Prime Minister's policies. It is vital to recognise that these allegations, based on substantial research, are on matters of high public interest, and as such their publication should be protected by both the Constitutional and the international guarantees of freedom of expression which Thailand has recognised. Subjecting Ms. Klangnarong, the newspaper and its editors to potential criminal sanctions is quite incompatible with the protection of these guarantees.

There is a strong and growing body of law in support of the principle that criminal defamation is itself a breach of the right to freedom of expression. For example, the UN Human Rights Committee, the body with responsibility for overseeing implementation of the International Covenant on Civil and Political Rights (ICCPR), ratified by Thailand in 1997, has repeatedly expressed concern, in the context of its consideration of regular country reports, about the possibility of criminal sanctions for defamation (1). Similarly, the UN Special Rapporteur on Freedom of Opinion and Expression, in his Report in 2000, and again in 2001, called on States to repeal all criminal defamation laws in favour of civil defamation laws (2). Finally, every year, the Commission on Human Rights, in its resolution on freedom of expression, notes its concern with "abuse of legal provisions on defamation and criminal libel" (3).

The principal concern expressed by these bodies, as well as by various national courts, with respect to criminal defamation is the chilling effect of criminal penalties, which are disproportionate to any harm incurred. In this regard, we note that, under Section 328 of the Penal Code, a person convicted of defamation by publication may be sentenced to two years' imprisonment.

Whenever the press is faced with the prospect of such penalties, there is a serious possibility that they will simply elect not to publish critical and controversial material, even where it is of high public importance. In the instant case, for example, allegations that a Corporation with close ties to government is the beneficiary of special favours is of the most pressing public concern. While the allegations may not sit comfortably, the right of the press to publish them, and the right of the public to receive such information, particularly where, as here, they are based on substantial research, must be protected.

We do not doubt that you personally, and the Corporation more generally, are committed to the robust protections of freedom of expression contained in the Constitution and in the ICCPR. Moreover, we believe that there would be positive benefits deriving from the Corporation?s being on public record as supporting these protections. Accordingly, we sincerely hope that, now that the point has been made to you that subjecting writers, editors and newspapers to criminal liability for publishing materials of public interest very much threatens such freedom, you will reconsider your decision to bring this suit. Perhaps a public statement to that effect would be in the interest of all.

Yours sincerely,

Andrew Puddephatt
Executive Director

1. For example in relation to Iceland and Jordan (1994), Tunisia and Morocco (1995), Mauritius (1996), Iraq (1997), Zimbabwe (1998), and Cameroon, Mexico, Morocco, Norway and Romania (1999).

2 See Promotion and protection of the right to freedom of opinion and expression, UN Doc. E/CN.4/2000/63, 18 January 2000, para. 52 and Promotion and protection of the right to freedom of opinion and expression, UN Doc. E/CN.4/2001/64, 26 January 2001.

3 See, for example, Resolution 2003/42, 23 April 2003, para. 3(a).