Thailand, against the advice of the UN and, many argue, in contravention of its obligations under international law to respect the right to freedom of expression, has a criminal defamation law on its books. It is Section 326 of the Criminal Code:
‘Whoever, imputes anything to another 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.’
For the moment, note this language about ‘impairing the reputation’ and ‘causing to be hated or scorned’.
Section 327 outlines what happens if the defamed party is dead and Section 328 lists the many ways in which the term of imprisonment can be doubled and the fine increased one hundredfold if the defamation is committed through some form of publication.
Notably the law, written yonks ago, makes no specific mention of computer-assisted defamation. There is just a catch-all final phrase: ‘propagation by any other means’.
Sections 328 and 329 set out the exemptions. If your allegedly defamatory comment is made in self-defence, constitutes fair comment, reports court proceedings or results from your official duties, then you are not guilty. Nor are you guilty if what you say is true, unless it concerns private matters.
Then after more minor issues, Section 333 says: ‘The offences in this Chapter are compoundable offences.’
So what’s a compoundable offence? This means that unless the victim makes a complaint, there is no prosecution. In crimes such as defamation and fraud, this allows the opportunity for a settlement between perpetrator and victim without the expense and trouble of a criminal trial (which would allow reporters to repeat the defamation). In sexual crimes, it allows the victim to escape the unwelcome publicity of a trial.
But it now turns out that Thailand has a second defamation law. The majority of prosecutions under Section 14 (1) of the Computer-related Crime Act (CCA) concern allegations that X defamed Y on the internet.
Now the language of the CCA is quite different:
‘Whoever commits any offence of the following acts shall be subject to imprisonment for not more than five years or a fine of not more than one hundred thousand baht or both:
(1) that involves import into a computer system of forged computer data, either in whole or in part, or false computer data, in a manner that is likely to cause damage to that third party or the public; …
Note there is nothing about impairing reputations, hatred or scorn.
This law, to the reasonable person, appears to be dealing with forgery and counterfeiting, not defamation. And this interpretation is supported by the fact that the pre-computer era Criminal Code deals with counterfeiting purely in terms of ‘documents’. This was in fact the issue raised when the CCA was being drafted. Computers opened up a gaping new loophole for fraudsters and 14 (1) was to be the plug.
However, ignoring the record of the legislative process, ignoring the view of the reasonable person and ignoring any sense of justice, freedom and rights, the minions of the Ministry of Internet Censorship Technology prosecute case after case under this law rather than under the defamation law in the Criminal Code.
But so what if the law allows 2 ways of nabbing miscreants? Does it matter as long as criminals are caught?
Yes it most certainly does.
First, the alert reader will already have spotted that the maximum penalty under the CCA is 5 years, whereas under the Criminal Code it is only 2.
Second, because Section 14 (1) contains the words ‘or the public’, the victim can be all of us and the law becomes non-compoundable. No chance of an out-of-court settlement.
Third, the Criminal Code allows certain kinds of statement to be exempt from the defamation law. The CCA has no exemptions. All that has to be proved is whether the data is false.
And even there the boys from MICT take a sweepingly broad view. Far broader than the Juridical Council who sent a witness to one trial to tell the court that if a document is faithfully copied onto the internet, then it is not ‘false’ as far as the CCA is concerned and if the aggrieved party thinks it is, then the original also was, and they should go after whoever produced the original. This would remove the case from the purview of the CCA and out of the clutches of MICT.
The Computer-related Crime Act is a sorry piece of legislation, one of many abominations passed by the military-appointed National Legislative Assembly after the 2006 coup. But respect for the rule of law, rights and freedoms is not helped by the wilfully ignorant and vindictive way it is being enforced.