"...when it comes to people expressing their opinions on matters of public affairs, it should not be a matter of simply weighing the accuser against the accused. Particularly when the subject is of public interest, such as corruption or monopolies within private enterprises, it is beneficial for all parties involved to encourage rational discussion within society...."
Strategic Lawsuit Against Public Participation or SLAPP suits are a major obstacle in the fight against corruption, as individuals who criticize or expose wrongdoing are often sued to silence them and hinder the expression of opinions against monopolistic capital groups. The goal of these lawsuits is not to win, but rather to harass, bully, and silence individuals.
Recently, Ms. Sarinee Achavanuntakul, a writer and academic in economics, was sued by Gulf Energy Development for defamation in both civil and criminal cases. The company demanded more than 100 million baht in damages, claiming that Ms. Sarinee had accused them of monopolizing power plants.
Ms. Sarinee revealed to Isara News Agency (www.isranews.org) that the lawsuit originated from a Facebook post on April 20, 2023, in which no particular company was mentioned. However, it was a post that aimed to explain the reasons for the high electricity bill.
"As a result of many years of research on business and human rights, taking into account international standards set by the United Nations, companies that are committed to respecting human rights should not pursue legal actions against their critics. The problem lies in the issue of business and human rights, specifically with regard to large, resource-rich organizations suing their critics. In most cases, these types of lawsuits tend to be prolonged, preventing the accused from having a voice during that time. These circumstances are concerning and also have an impact on the freedom of speech of the person being sued," said Ms. Sarinee.
Ms. Sarinee suggested that the court should have clear guidelines from the beginning to dismiss such cases early on and avoid wasting time. In cases like these, where the information provided is clear and unlike criminal matters requiring further investigation and evidence, it should be sufficient to determine whether the opinions are baseless or supported by solid references and therefore not a defamation case.
Ms. Sarinee concluded that even without specific laws, clear guidelines should be established to differentiate between SLAPP lawsuits and defamation cases in preliminary hearings.
Ms. Sarinee Achavanuntakul, a writer and academic in economics
Efforts have been made to push forward an Anti-SLAPP Law in Thailand for many years. A draft of law has been prepared by the Office of the National Anti-Corruption Commission (NACC) and proposed to the Cabinet for consideration and approval. The principle was on January 24, 2022, before being presented to the parliament.
Afterward, the Council of State reviewed and agreed to amend the Organic Act on the Prevention and Suppression of Corruption B.E. 2561 to align it with the principles outlined in the draft.
The draft aims to comply with the national reform plan on the prevention and suppression of corruption and misconduct (revised version), which is set to include the Anti-SLAPP law, in accordance with Section 63 of the Constitution of Thailand B.E. 2560.
The law will protect individuals facing SLAPP lawsuits for their speech, reporting, whistleblowing, or expressing opinions to the NACC.
The NACC will play a vital role in preventing SLAPP lawsuits through the Anti-SLAPP Law, using legal mechanisms to determine which individuals deserve protection and assistance in civil and criminal litigation, as well as disciplinary actions.
the Office of the National Anti-Corruption Commission (NACC)
Mr. Phuthep Taweechotthanakul, the Assistant Secretary-General of the NACC, disclosed that the NACC has recently submitted the bill to the Cabinet for consideration. The Office of the Council of State has conducted a comprehensive review of the bill's details and essential components. The focus is on establishing a process to prevent SLAPP lawsuits, which is an integral part of anti-corruption measures and aims to promote whistleblowing and witness participation in corruption cases handled by the NACC.
Mr. Phuthep stated that “In terms of the timeframe, the Acting Cabinet will need to wait for the new Cabinet to be formed before presenting the draft to the House of Representatives during the first parliamentary meeting after the dissolution of the previous parliament.”
Mr. Phuthep further explained that if the law is enacted, it will bring greater clarity to the practice. Previously, witnesses of the NACC were protected in both civil and criminal cases. However, there were often no specific details regarding expenses or the agency responsible for providing assistance to individuals facing criminal, civil, or disciplinary proceedings.
The new law aims to provide details and specifies that the NACC is responsible for appointing officials to provide defense or act on behalf of whistleblowers who may face lawsuits.
Mr. Phuthep Taweechotthanakul, the Assistant Secretary-General of the NACC
Mr. Rangsiman Rome, the MP candidate for the Move Forward Party, disclosed that the proposal for the Anti-SLAPP law has been presented to the House on multiple occasions. The law is currently under consideration in parliament, and if the Move Forward Party forms the government, they will persistently advocate for the previously proposed draft. As a result, the Anti-SLAPP law will be one of the legislative initiatives that the Move Forward Party will continue to push forward.
Mr. Rangsiman stated that the initial focus of the law is to prevent SLAPP lawsuits, which would grant individuals the right to criticize, particularly on matters that are in the best interest of the public and recognizing the importance of such issues.
The purpose of this law is to address these issues and prevent SLAPP lawsuits. By implementing this law, the aim is to expedite the litigation process and provide a mechanism for the prompt dismissal of SLAPP cases. This would alleviate the burden on the people involved.
When asked if he had ever been sued for a similar lawsuit, Mr. Rangsiman responded by saying that he himself had been subject to lawsuits. As a politician, he mentioned specific cases such as the case of the Five Provinces Bordering Forest Preservation Foundation and the matter involving Senator Uppakit. These cases are connected to my work and performance in the House of Representatives.
Mr. Rangsiman Rome, the MP candidate for the Move Forward Party
Associate Professor Dr. Pokpong Srisanit, a lecturer at the Faculty of Law, Thammasat University, proposed that people should have the right and freedom to express their opinions, especially to criticize corruption and unlawful activities of private companies.
On the other hand, it is essential to acknowledge that everyone holds the right to safeguard their reputation and dignity and should not be unfairly accused or subjected to tarnishment.
Hence, when the rights to freedom of expression and the protection of reputation are in conflict, it becomes the responsibility of the court to assess whether the exercise of those rights has been carried out in good faith. If it is determined that the expression of opinion was done in good faith, the person who expressed their opinion should prevail. However, if it is established that the right to freedom of expression was exploited in bad faith, resulting in defamatory statements, the person responsible will be required to acknowledge their actions and provide compensation for the harm caused to others through false accusations.
Dr. Pokpong emphasizes that when it comes to people expressing their opinions on matters of public affairs, it should not be a matter of simply weighing the accuser against the accused. Particularly when the subject is of public interest, such as corruption or monopolies within private enterprises, it is beneficial for all parties involved to encourage rational discussion within society.
Dr. Pokpong explained that in other countries, Anti-SLAPP Laws exist to prevent SLAPP lawsuits, providing individuals with the opportunity to demonstrate that their opinions were expressed in good faith and for the common good. If the court determines this to be the case, it dismisses the defamation lawsuit. These laws aim to protect the public interest and allow individuals to express themselves freely. If the court determines that the expression of opinion was made in good faith and for the common good, it may dismiss the defamation lawsuit. In such cases, the court may recognize that the individual was exercising their right to freedom of expression in a manner that benefits the public interest. As a result, the private business would be required to drop the defamation proceedings.
In such cases, the court's decision to dismiss the defamation lawsuit is not solely aimed at protecting the accused or the person exercising their freedom of expression but to safeguard the public interest.
“The laws in some countries referred to as "Anti-SLAPP laws" do not outright prohibit individuals who have been defamed from filing lawsuits. However, these laws do provide mechanisms to expedite the resolution of SLAPP cases. The core principle behind Anti-SLAPP laws is that individuals should be able to rely on their rights to freedom of expression and act in good faith when speaking out on matters of public interest. When faced with a SLAPP lawsuit, the court plays a crucial role in swiftly assessing the merits of the case and, promptly bringing an end to the proceedings. This is the essence of what a SLAPP protection law entails”
Dr. Pokpong explained that in Thailand, there are two types of SLAPP lawsuits commonly observed: criminal proceedings based on defamation charges and civil proceedings seeking damages.
Dr. Pokpong further mentioned that although Thailand currently lacks specific laws to prevent SLAPP lawsuits like some other countries, the judicial system in Thailand can still play a crucial role in addressing such cases. The courts can assess the content, opinions, and criticisms expressed by individuals and determine whether they were made in good faith and in the interest of the public rather than personal gain. This approach helps in fostering a better society and contributing to the improvement of the country as a whole.
If the court is able to recognize that there are existing mechanisms within various sections of Thai law that can effectively halt defamation cases without further time wastage, it can be accomplished through a preliminary hearing in civil cases. In such instances, an individual can assert that they exercised their rights in good faith and engaged in fair criticism in accordance with Section 329 (3) of the Criminal Code. This approach enables the swift dismissal of the case while safeguarding the public interest. Although there may not be a specific law addressing this matter, legal provisions still offer a viable solution.
Professor Dr. Pokpong Srisanit, a lecturer at the Faculty of Law, Thammasat University
The initiative to introduce legislation addressing Anti-SLAPP lawsuits has been driven not only by the NACC but also the civil society or those who have been directly impacted. However, in the recent national reform report, it has been recommended that the government take proactive measures to address the issue of Anti-SLAPP lawsuits. It remains important to closely monitor the progress and outcomes of this proposed law following the formation of a government led by the Move Forward Party.
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