The defamation trial against two Phuketwan journalists, scheduled to begin today, will shed light on the need to defend the media for exposes on issues of public interest.
Two journalists of Phuketwan, a news website based in Phuket province southern Thailand, will stand trial for a criminal libel complaint filed by the Royal Thai Navy for the re-publication of a Reuters news article claiming some members of the naval forces to be benefiting from the trafficking of Rohingya refugees from Myanmar.
If found guilty, the two defendants, editor Alan Morison and journalist Chutima Sidasathian, could each receive a prison term of up to five years and a fine of up to 100,000 Baht (approximately 3,000 USD) for publishing the alleged false report on 17 July 2013 on its website. The Royal Thai Navy claimed that the article defamed the institution and filed charges under Sections 326, 328, 332 of Thai Penal Code and Section 14(1) of the Computer-related Crime Act.
The article titled “Thai Military Profiting from Trade in Boatpeople, Says Special Report” was an excerpt from a special report, “Thai authorities implicated in Rohingya Muslim smuggling network” produced by the London-based news agency Reuters.
The case slapped against Phuketwan on 17 April 2014 has alarmed SEAPA and other international rights and media advocacy groups. This was the first time for such an entire military institution – notwithstanding the need for accountability in any functioning democratic society – sued journalists. The charge brought against the journalists is disproportionate and unnecessary. It clearly violates principle of the right freedom of expression that the Thai government has committed to protect under the Constitution and under international legal instruments protecting freedom of expression.
The Royal Thai Navy also chose to ignore the important role of the media in exposing one of the most serious human rights issues.
Moreover, Section 14 (1) of the Computer-related Crimes Act (CCA) dealing with the importation of false information into a computer system, prevents the withdrawal of cases, unlike in ordinary libel.
The only relief from such charges under the CCA would be in the case of acquittal. In August 2014, Direkrit Janekrobtham, Secretary General to the Office of Administrative Court filed criminal libel charge under CCA Section 14(1) against local investigative news agency, Issara News, and related officers for publishing the false information about a court hearing related to his disciplinary action and causing damage to his reputation. However, the criminal court ruled in favour of the defendants on ground that their report was factual and the news agency was doing an honest duty in providing critical analysis of the issue.
Given the broad and vague provisions of the CCA on criminal offences and its problematic enforcement, the unjustified use of this law would have a chilling effect on online expression, including the media industry in Thailand which has moved online. The proliferation of internet and social media that changed the way people consume and react to information in the country.
The Naval institution should instead have sought more appropriate means to address concerns raised in the report. Phuketwan journalists have been covering the Rohingya issues since 2009, and were following normal professional practice in publishing the report in question.
Before the story was published on 17 July, the two Phuketwan journalists tried to get comments from the naval authorities, who did not make their own sources available at that time. The news website, however, published the Navy’s denial of the report three days later. After charges were filed, they also published a letter to the Naval command expressing regret for causing misunderstanding.
Two rounds of dialogue between the Naval authorities involved and Phuketwan journalists took place in June 2014 and but produced no progress toward withdrawing the charges. The Navy sought a public apology from Phuketwan, to be published on their site and several media outlets in return for dropping the defamation lawsuit. Dropping the defamation charges under the Penal Code would render the related computer-crime offence infertile. However, the journalists refused a public apology since they insisted that the article is part of standard journalistic practice.
It is not known whether the Navy has attempted similar actions against other local newspapers which also carried the same story, and even translated it into Thai. Nor is there any clear indication whether the Navy would seek redress against Reuters, the original source of the report. The Reuters reporters who wrote the article later won the 2014 Pulitzer Prize for International Reporting for its reports on the plight of Rohingya refugees including the article republished in Phuketwan.
While the news website was able to continue operations pending the trial, their work became more difficult due to social sanctions at the local level and lack of cooperation from the authorities. Phuketwan journalists also reportedly received threatening emails and social media posts. Chutima, who is an expert on issue of human trafficking and Rohingya migrants, had been labeled as a “dangerous person” with her photo posted in front of the Phuket navy camp gate. She was banned from entering the compound for press briefings. It was not known who ordered her photo put it up at the camp gate but she managed to have it taken down later.
There has been an increasing concern that political suppression and tighter media censorship after the 22 May 2014 coup would create an unfavourable climate against justice for Phuketwan journalists. Already, junta officials have become increasingly intolerant of critical media coverage of their policy and performance.
After the coup, successive media exposes of mass graves of Rohingya refugees near the Thai-Malaysian border, the arrests of alleged traffickers, and the government’s response to stranded boats adrift on the Andaman have shone a spotlight on the role of the Thai military junta and particularly the Royal Thai navy in handling what has become a regional crisis.
There has been strong international criticism of the Thai policy to push back refugee boats that enter territorial waters. This has prompted coup leader and Primer General Prayuth Chan-ocha to impose censorship on the coverage of Rohingya issues, including banning media access to the refugee and navy boats.
As the trial begins, strong pressure from local and international media and rights advocacy group needs to be sustained to ensure that the trial process is conducted in a fair and transparent manner.
However, criminal defamation lawsuits from public institutions against the media has been an increasing tendency in Thailand over the past two years. Former Prime Minister Yingluck Shinawatra threatened to sue a cartoonist for his online remark against her. In another case, she also sued a television channel and a researcher for publishing research information about the controversial rice pledging scheme.
Similarly, the country’s National Broadcasting and Telecommunications Commission threatened to file defamation lawsuit against critics of its delayed biding process for 4g mobile phone signals, including against the Thai Public Broadcasting Service Corporation (TPBS) for carrying the comments.
Elsewhere in the region, defamation lawsuits have also been increasingly used against media exposes and critics of government, such as the Myanmar Ministry of Information’s lawsuits against Eleven Media, and the slew of online defamation cases in Indonesia.
Efforts to decriminalise defamation in Thailand especially used against the media have thus far failed. However the Penal Code allows for reasonable ground to defend against unjustified libel complaints if journalists can prove they have done their job in a fair and honest manner and in the interest of the public.
SEAPA will be attending the Phuketwan trials, along with representatives from Australian Embassy and some countries in the European Union, and human rights groups.
It is also in the interest of the Thai government to ensure the Phuketwan journalists receive a fair trial. For one, the government has committed to tackle the trafficking of Rohingya refugees and find long-term solution under an ASEAN framework.
In this context, Phuketwan and other media groups reporting on the Rohingya and human trafficking issue should be highly commended, since these have helped ing the government identify entry points to address the crisis.
The trial dates: 14th -16th of July 2015
Venue: Phuket Provincial Court
The plaintiff side: 4 witnesses (14th of July only)
The defendant side: 9 witnesses including three defendants (15th -16th of July)