Defamation in Thailand: An Overview

Defamation in Thailand: An Overview

Defamation under the Criminal Code

In Thailand, defamation is a criminal offense which is addressed under sections 326 -333 of Thailand’s Criminal Code (the “Code”). Under the Code, a distinction is drawn between two types of defamation, these are as follows:

Slander/ Ordinary Defamation – This crime is covered under section 326 of the Code, where it provides that “whoever, imputes¹ anything to the other 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”. This type of defamation is less serious than libel and basically covers situations where a person verbally damages/undermines another person’s reputation in front of another person (3^rd person).

Libel –This crime is addressed under section 328 of the Code and covers situations where the offence of defamation is committed by “means of publication of a document, drawing, painting, cinematography film, picture or letters made visible by any means, gramophone record or another recording instrument, recording picture or letters, or by broadcasting or spreading picture, or by propagation by any other means”. This type of defamation is subject to more severe punishment when compared to ordinary defamation given that is usually harder to make printed defamatory statements disappear.

Defamation under the Civil & Commercial Code

In addition to the Criminal Code, a person who commits defamation in Thailand can also be sued for compensation under the Civil & Commercial Code (CCC) as section 423 of the CCC provides that “a person who contrary to the truth, asserts or circulates as a fact that which is injurious to the reputation or the credit of another or his earnings or prosperity in any other manner, shall compensate the other for any damage arising therefrom, even if he does not know of its untruth, provided he ought to know it.

Thus, in order for a person to successfully sue for compensation for defamation under the CCC they need to prove the following matters to the Court:

     1. The defendant actually made the assertion and asserted it as fact;
     2. The defendant’s assertion is untruthful;
     3. The defendant’s assertion is injurious to their reputation or their credit or their earnings or prosperity in any other manner.
     4. The defendant’s assertion caused them damage.

It is also worth noting that the CCC provides that if an employee makes a defamatory statement in the course of their work (which breaches section 423 of the CCC) then their employer is jointly liable with the employee and as such the damaged person can claim compensation from the employer too. In light of the above, it is important for employers to provide their employees with training and enforce suitable policies regarding communication with outside third parties to avoid ending up embroiled in a costly defamation law suit which could result in significant amounts of compensation being paid out.

With respect to compensation if a party is found liable under section 423, it is worth noting that the CCC does not stipulate any minimum or maximum cap, hence the Courts have discretion on the amount to be awarded to the injured party. Furthermore, the CCC also provides that when the Court gives judgment as to liability for the wrongful act and liability, it is not bound by the provisions of the criminal law regarding liability, nor is the Court bound by the conviction or non-conviction of the person for a criminal offence. Moreover, the CCC also provides that if a person has injured the reputation of another then the Court may order proper measures to be taken for the rehabilitation of the defamed party’s reputation, instead of, or together with, compensatory damages; such ‘proper measures’ are at the discretion of the Court and may for example be a public retraction published in local newspapers etc.

Criminal Penalties:

Under the Criminal Code, the penalties for defamation are quite serious given that it is a criminal offence. If a person is found guilty of ordinary defamation under section 326 then they can be punished with a term of imprisonment not exceeding one year or fined an amount not exceeding twenty thousand Baht, or both. However, if a person is found guilty of libel (under section 328) then the penalties are more severe as the Court can order the offender be punished with imprisonment for a term not exceeding two years and a fine not exceeding two hundred thousand Baht.

It should also be noted that if a person is found guilty of defamation by the Courts, then in addition to the above criminal sanctions, the Code provides that the Court can order:

     a. The seizure and destruction of defamatory material or part thereof (for example destruction of a book or CD containing defamatory wording);
     b. The publishing of all or part of the judgment in one or more newspapers once or several times at the expense of the guilty party.

Prescription Period (statute of limitation period) for Criminal Offences

In accordance with section 96 of the Criminal Code if the injured person does not file a case with the Court within three (3) months as from the date of the offence and the offender becoming known by the injured person, then the criminal prosecution is precluded by prescription.

It should also be noted that if a person who alleges defamation dies before filing a case with the Court then their father, mother, spouse or child can submit the case, and such person shall be deemed to be the ‘injured person’.

Defenses & Techniques to Avoid Punishment under the Criminal Code

The Criminal Code provides for various defenses against the crime of defamation whereby if a person expresses any opinion or statement they shall not be guilty of defamation in the following cases:

     1. If the accused expresses such statement/opinion by way of self-justification or defense, or for the protection of a legitimate interest;
     2. If the accused person is an official who in making the statement was carrying out their official function;
     3. If the accused person can prove that their statement/opinion was a fair comment on any person or thing subjected to public criticism; or
     4. If the statement made by the accused was a fair report of the open proceedings of any Court or meeting.

Furthermore, the Code also provides that if accused party is found guilty then they can avoid punishment if they can prove that “the imputation made by him is true”. However, using this approach to avoid punishment is somewhat limited in scope given that the Code states that they are not allowed to prove this if such imputation concerns ‘personal matters’, and such proof will not be of benefit to the public.

The Criminal Code also provides an extra defense to persons trying a case in court as section 331 of the Code provides that “the party in a case or party’s lawyer expressing opinion or statement in the proceeding of the Court in favor of his case shall not be offence of defamation.”

Defenses under the Civil & Commercial Code

If a person is alleged to have committed a breach of section 423 of the CCC then they can defend themselves (i.e. not be liable to make compensation to the damaged party) if they can prove that they were unaware that their communication was untruthful and that he/she or the receiver of the communication has a rightful interest in it.

¹Represent (something, especially something undesirable) as being done, caused, or possessed by someone; attribute.

Dharmniti Law Office Co., Ltd.
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