Case Summary and Outcome

In July 2013, Reuters released an investigative report on Rohingya Muslims fleeing violence and persecution in Myanmar. As tens of thousands of stateless Rohingya embark dangerous journeys to surrounding Muslim-friendly countries, they become extremely vulnerable to a network of smugglers who, according to Reuters, brutally beat them until they come up with money. Based on interviews with Rohingya refugees and witnesses, Reuters also revealed how some Thai navy security forces “systematically” work with smugglers to profit from the mass migration of Rohingya Muslims. As the report reached Thailand, Big Island Media published an article in Phuketwan news website titled “Thai Military Profiting from Trade in Boatpeople, Says special report,” restating the Reuter’s findings.

Subsequently, the Royal Thai Navy brought a criminal action against the publishing company, and a Phuketwan’s editor and reporter for defamation and breach of the Computer Crime Act, arguing that the allegation of its involvement in smuggling Rohingya was unfounded and “maliciously” destroyed the reputation of navy officers. The Provincial Court of Phuket dismissed the complaint. It ruled that because the defendants merely reproduced the reliable information gathered by Reuters news agency, they did not defame the navy and were not in violation of the Computer Crime Act, as the published computer data was not likely to damage the country’s national security or create panic in the public.  

Columbia Global Freedom of Expression notes that some of the information contained in this report was derived from secondary sources.

Facts

On July 17, 2013, Phuketwan, a Thailand-based online news outlet, published a report alleging that the Royal Navy forces of Thailand were complicit in the illegal trafficking of Rohingya Muslims from Myanmar. It stated that “[t]he Thai naval forces usually earn about 2,000 baht per Rohingya for spotting a boat or turning a blind eye, said the smuggler, who works in the Southern Thai region of Phang Nga and deals directly with the navy and police.” Phuketwan gathered this information from an investigative report published by Reuters news agency.

In December 2013, the Royal Thai Navy brought a criminal defamation claim against Big Island Media, the publishing company of Phuketwan and its editor Alan Morison, and reporter Chutima Sidasathian. The government also claimed that the defendants violated Article 14 of the Computer Crime Act of 2007, which imposes imprisonment or a fine for entering “false computer data, in a manner that is likely to cause damage to . . . third party or the public.” [3]

As to the criminal defamation claim, Article 326 of Thailand’s Penal Code imposes imprisonment, not exceeding one year or a fine for imputing “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.” And under Article 328, “If the offence of defamation be committed by means of publication of a document, drawing, painting, cinematography  film,  picture  or  letters  made  visible  by  any means, gramophone record or an other recording instruments, recording picture or letters, or by broadcasting or spreading picture, or by propagation by any other means, the offender shall be punished with imprisonment not exceeding two years and fined not exceeding two hundred thousand Baht.”

Decision Overview

The Provincial Court of Phuket issued the judgment.

The case involved three separate legal issues. First, whether the Royal Thai Navy had standing to bring the action against the defendants. Second, whether the publication at issue amounted to defamation by false advertising under Article 328 of the Penal Code. Lastly, whether the defendants violated Article 14 of the Computer Crime Act.

As to the first issue, the court ruled that the Royal Thai Navy had proper standing to sue. It reasoned that even though the defendants’ publication expressly referred to “Naval Forces,” rather than the Royal Navy as a unit of the armed forces, the term used was general enough to refer to the unit as a whole.

With respect to the second issue, the court found that the defendants’ allegation of the navy forces being involved in the trafficking of the Rohingya migrants was a reproduction of the report by Reuters news agency, a credible, internationally known and accountable news media. As such, the court was of the opinion that the report initially produced by Reuters was based on reliable information. And because the defendants simply reproduced part of the report, their act could not be construed as defamation under Article 328 of the Penal Code. In reaching this conclusion, the Court also noted that in several parts of the article, the defendants expressly made reference to Reuters and disclaimed that the information was neither collected nor written by them.

As to the alleged violation of Article 14 of the Computer Crime Act of Thailand, the court held that because the reproduced information gathered by Reuters was neither false nor was likely to cause damage to the national security or panic in the public, the defendants did not violate the Act. It reiterated that the intent of Article 14 “is not to punish a person who commits the offence of defamation by publicizing.”

Accordingly, the Provincial Court of Phuket dismissed the criminal action against Big Island Media, and Phuketwan’s editor and reporter. The Royal Thai Navy later declined to appeal the decision.