I studied and grew up in London, which is officially one of the most multicultural cities in the world. It has its challenges and issues, but it also has its fair share of benefits and dynamism due to the diversity of people living there. I am still a fan of London, but have found happiness in life, work and surrounds in Phuket to date. Except for the driving experience.
In comparison, Phuket is also becoming more and more a diverse place. It is diverse in terms of the Thai people living and working here – many different provinces represented on one island with little islands next to it, a diverse spread of nationalities of tourists, and let’s not forget the long term and most-of-the-year residents who also have a broad mix of backgrounds, languages and cultures.
When you put all of these people together in one place, with laws that were written perhaps not with this mix in mind, a certain amount of confusion can ensue.
In business circles in Phuket, I have often heard exclamations from foreigners directed to others of "you can’t say that – it's 'slanderous' " and "that’s 'defamatory'"or even "that’s 'libelous'". Not understanding the differences between those acts is a common fundamental error.
In the age of Google, some even think they can save a few pennies, pounds or dollars by 'Googling' the Thai law relating to 'defamation' and then take a guess and try to trump the Thai law exams, Thai lawyer license and criminal litigation experience of a Thai Attorney-at-law by simply reading an extract of the Criminal Code and assuming what is 'defamatory' and what is not.
I don’t recommend that as an approach to understanding what is criminal, and what is not. In short, be careful what you say, what you write, how you write it, who you write it to, when you write it, how you publish it and how you share it.
Here are some examples of trouble spots relating to defamation in Thailand:
Surely I can say whatever I like, if it is true ?
There is in fact an exclusion for violation of defamation laws in the Criminal Code under Section 330 “In case of defamation, if the person prosecuted for defamation can prove that the imputation made by him is true, he shall not be punished.”
However, please note the exception to the exception: “but he shall not be allowed to prove if such imputation concerns personal matters, and such proof will not [be of] benefit to the public.”
This effectively means that if a personal attack is made and even it if is true, if the attack doesn't "benefit the public", then defamation shall have occurred, provided the other parts of the law regarding defamation are satisfied.
In other countries, truth is an ultimate defence to many forms of defamation, slander and libel. The distinction and exceptions in Thailand must be noted and understood.
If I write a review on Tripadvisor – Is that Defamation?
It could be in Thailand, if your review is designed to damage and is not subject to any exceptions. However, most of the time, unlikely not.
I am unhappy with the quality of my condominium unit which I bought in Phuket. I then joined an online forum 'action group' and circulated a good few harsh words on the developer – especially because my sink faucet was faulty. I am now concerned my words might reach the wrong party. Am I in danger?
Yes, potentially. Although there is a protection under s.329 Criminal Code which states:
“Whoever, in good faith, expresses an opinion or statement:
… (3) By way of fair comment on any person or thing subjected to public criticism; or…
Shall not be guilty of defamation.”
If a developer is not subject to public criticism and the action group is in fact a mob group designed to damage reputation, then defamation laws could be invoked against the action group.
I am unsure if something was defamation, but I didn’t like it. Can I just file a claim and see if the claim will 'stick'?
No, you should not do that. Filing a criminal complaint is a very serious matter which is reserved for the police or for individuals who choose to conduct a private criminal prosecution. These are two different procedures. If you incorrectly file or file a false criminal complaint, then the other party may sue you for falsely filing criminal complaint against them as per section 175 Criminal Code:
“Whoever, taking the false information to charge the person in the Court with the commission of the criminal offence…shall be imprisoned not more than 5 years and fined not more than ten thousand baht.”
I was involved in a court case and the other party’s lawyer started to say untrue and unfair things about me. These statements were translated to me in the courtroom and I was upset. Can I sue the attorney-at-law for defamation?
Be careful, because under section 331 Criminal Code: “The Party in a case or party’s lawyer expressing an opinion or statement in the proceedings of the Court in favour of his case, shall not commit an offence of defamation.”
I heard there is no 'precedent' system of case law in Thailand. Does this mean that defamation cases are irrelevant to my case?
No. In defamation cases, it is important for a Thai qualified and competent lawyer to search case law for supporting cases under which certain words, actions and statements in certain circumstances were considered defamatory. This will support such lawyer in drafting the 'complaint' to submit to the court, and also at trial.
Life became better in many ways after the age of the Internet took off. However, just like making guns and ammunition readily available has proven statistically that gun deaths increase – compare the UK and the USA on gun deaths – when it comes to defamation, the opportunity to defame using the Internet or your email account as a weapon grew exponentially and continues to grow now.
There is no harmonisation of global law on defamation. If you are in Thailand, or intend to spend time in Thailand, then avoid making assumptions about what is acceptable – or flirting with danger when you write or speak.
By Desmond Hughes, Senior Partner, Hughes Krupica
Hughes Krupica is a law firm which specialises in Real Estate; Construction; Hospitality; Corporate; Marine; Dispute Resolution; and Litigation, operating in Bangkok and Phuket, servicing clients in relation to their business activities in Thailand and in other regions of Asia. www.hugheskrupica.com
Contact info:
Hughes Krupica Consulting
PHUKET (HEAD OFFICE)
Hughes Krupica Consulting Co. Ltd
23/123-5 Moo 2 Kohkaew Plaza
The Phuket Boat Lagoon
T. Kohkaew Amphoe Muang
Phuket 83000 Thailand
Tel: (0) 76 608 468
BANGKOK (SERVICED OFFICE)
Hughes Krupica Consulting (Bangkok) Co. Ltd
29/41 Soi Ladprao 22
Ladprao Road
Chankasem, Chatuchak
Bangkok 10900 Thailand
Tel: (0) 20 771 518
[email protected]
www.hugheskrupica.com
Contact info:
Hughes Krupica Consulting
PHUKET (HEAD OFFICE)
Hughes Krupica Consulting Co. Ltd
23/123-5 Moo 2 Kohkaew Plaza
The Phuket Boat Lagoon
T. Kohkaew Amphoe Muang
Phuket 83000 Thailand
Tel: (0) 76 608 468
BANGKOK (SERVICED OFFICE)
Hughes Krupica Consulting (Bangkok) Co. Ltd
29/41 Soi Ladprao 22
Ladprao Road
Chankasem, Chatuchak
Bangkok 10900 Thailand
Tel: (0) 20 771 518
[email protected]
www.hugheskrupica.com
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