Defenses to Defamation

Under Thai law, defamation is generally the act of imputing something regarding a person to a third person that is likely to damage the reputation of that person. Unlike in some other jurisdictions where the act of defamation only carries civil liability, defamation is a criminal offense in Thailand punishable by up to one year imprisonment or a twenty thousand baht fine or both. Nevertheless, Thailand allows a number of defenses for those who are accused of defamation. The defenses to defamation provided under the Criminal Code are as follows:

• Expression of any of an opinion or statement in good-faith that is:
  • A self-justification or defense or a protection of legitimate interest;
  • Made by an official in the exercise of his or her functions;
  • A fair comment on any person or thing subject to public criticism; or
  • A fair report on any opening proceeding of a court or meeting.
• An expression of a truthful statement; but the accused shall not be allowed to prove the truth of the statement if (1) it concerns personal matters and (2) proving the truth of the matter shall be not be beneficial to the public.
• In Thai Supreme Court Decision No. 14401/2555, the Court held that when evaluating a statement that concerns someone’s personal matters, but which also contains matters that would be beneficial to the public if proven true, the statement must be considered as a whole and cannot be separated into personal and non-personal parts. The only exception is where is it obvious that a part of the statement is clearly unrelated to the rest or where the accused clearly has the intention to target a person specifically.
• In Thai Supreme Court Decision No. 1362/2514, the Court held that the accusation of a government officer of accepting bribes is not defamation because a statement that a government officer is performing his duties unlawfully, if proven true, would be of benefit to the public.
• In Thai Supreme Court Decision No. 8511/2554, the Court held that the publication of facts alleged in an open and pending court proceeding not to be defamation despite that the Defendant did not state that the alleged facts were only allegations made by the opposing party to the proceedings and despite that there was not yet a final judgment of the Court determining what the actual facts were. The Court considered that the Defendant published the facts in the context of an article analyzing corporate governance in the wake of the Asian Financial Crisis of 1998. Therefore, the Court held the publication to not be defamation under the grounds of Section 329(3) of the Code, that is, a fair comment on any person or thing subject to public criticism.

Defamation law in Thailand is complex. It is advised that businesses involved in publication consult with competent legal counsel in order to minimize their legal liability.

 

Category: Criminal Law, Litigation