Divided media, divided country

Thai politics saw a period of the calm in the first three quarters of 2013 before instability began in October when Prime Minister Yingluck Shinawatra and members of the ruling Pheu Thai Party tried to legislate a number of bills that were strongly rejected by the opposition. This triggered a protracted crisis that has stalled Bangkok politics since then.

The most controversial move was a draft amnesty bill that was extensively revised during deliberations in the lower house that would have allowed Yingluck’s elder brother, former Prime Minister Thaksin Shinawatra to be pardoned, along with other leaders and supporters of various street protests that rocked various governments  since he was ousted by a military coup in September 2006. He has been has been living in self-exile abroad. Anti-Thaksin political groups could not accept that he would walk free without serving jail time in jail for his corruption conviction in absentia on corruption charges in 2007.

The anti-amnesty rally that started in late October 2013 soon snowballed into a major protest against the Yingluck government after Suthep Thaugsuban, then secretary general of the opposition Democrat Party, quit his seat in the lower house to lead the movement that called itself People’s Democratic Reform Committee (PDRC). Though Yingluck enacted a royal decree to dissolve the lower House of Representatives on 9 December, which in effect killed all pending bills in parliament, to call for a general election on 2 February 2014, Suthep and his supporters would not give up and have heightened their demand.

Not only did Suthep reject the 2 February elections, he also demanded Yingluck to step down as the caretaker prime minister to pave the way for an appointed ‘neutral’ premier to lead the country through political reform under a non-elected ‘People’s Council’..

Members of PDRC then obstructed candidate registration in some constituencies, mainly in pro-Democrat southern provinces, and also discouraged people to cast their ballots on the election day. The Constitutional Court then ruled on 21 March that the 2 February general election was unconstitutional. As of this writing, no new general election date has been set while Yingluck and her cabinet ministers remain as caretakers with limited administrative powers.

Polarization and Hate Speech

Thai media reporting on the current political crisis has reflected a split into pro- and anti-Yingluck camps, and contributed to the intensification of the crisis. TV program hosts and reporters were seen joining PDRC marches in Bangkok and spoke on air openly showing their support to Suthep’s causes, while others commented satirically Yingluck. Some other media, however, saw Suthep and his movement as an undemocratic force trying to unseat Yingluck, whose Pheu Thai Party won by a landslide in 2011.

With the Democrat-leaning Blue Sky, a satellite television station on one side and the Pheu Thai-supporting Asia Update and UDD TV on the other, each side has weapons they in any media war.

Since Yingluck officially became Thailand’s first female prime minister in early August 2011, criticism or even hatred about her public conducts has never run short. Having no experience in any public office before taking the highest job of the country’s executive branch, she seemed to always fumble in her public speeches and commit political blunders, which provided juicy fodder for the media’s daily coverage, not to mention in social media. For instance, not long after her taking office, she was photographed wearing a pair of expensive boots while visiting some inundated areas during the catastrophic floods in 2011.

An incident that drew heavy criticism was her speech at the 7th Ministerial Conference of the Community of Democracies in Mongolia on 29 April 2013. She complained for her brother Thaksin about the September 2006 military coup, and said that the current constitution was enacted by a legislative assembly set up by the coup leaders to ‘put in mechanisms to restrict democracy’. The written version of her speech continued that ‘A good example of this is that half of the Thai Senate is elected, but the other half is appointed by a small group of people. In addition, the so-called independent agencies have abused the power that should belong to the people, for the benefit of the few rather than to the Thai society at large.”

The following day, a senior cartoonist of the mass-circulation Thai-language Thai Rath daily, Somchai Katanyutanon, who is better known by his pen name Chai Ratchawat, posted in his facebook page a Yingluck photo accompanied by the caption: “Please understand! Prostitutes are not bad girls. Prostitutes just roam around to sell their bodies. But bad girls roam around to sell the nation.” Yingluck has filed defamation charges against him for the post.

Soon after, someone hacked into the web page of the Government House and replaced the home page with a photo of Yingluck saying, ‘I’m a slutty moron’, captioned: “I know that I am the worst Prime Minister ever in Thailand history!!!” No one has been charged on this incident yet.

Abusive language or hate speech has now become common in satellite TV, low-powered radio stations and social network as there is no effective self-regulatory mechanism in beyond the mainstream media associations.

The unrestricted and under-regulated speech on the Internet, in particular, has resulted in a rise of defamation cases using the Computer Crime Act. Thai mainstream radio, television and newspapers, though having been also polarized by the current political crisis, are relatively more careful in the language they use.

Attacks against journalists

During their protests, Suthep and his movement supporters demanded news media, particularly television, to allot more air time in covering their messages. They have also accused some satellite televisions as being kowtowed to Thaksin and have avoided talking to reporters of these channels.

In several incidents, reporters were physically threatened by protesters if their reports were seen as not favoring the PDRC.

There were, of course, more serious attacks. In the evening of 16 January 2014, a male photographer of a Thai-language news agency was detained by a group of men after he took pictures of Suthep. He was able to escape from serious injury only after crying for help and people nearby came to his aid.

Between December 2013 and February 2014, there were at least eight male journalists and one female reporter injured in various degrees by real bullets, rubber bullets and explosions during PDRC protests, according to records of Thai Journalists Association. Some needed only stitches while others needed minor operations and required hospitalization. One major clash between pro-Thaksin supporters and PDRC protesters on 1 February at a northern suburb of Bangkok, with shootings and explosions, but no one was killed.

However, with 25 killed, casualties are fewer when compared to those incurred during rallies by pro-Thaksin red-shirted supporters against a government led by the Democrat Party in April and May 2010. Media associations have issued statements calling for non-violence for journalists covering the PDRC protests.

Elsewhere in Thailand, the most dangerous region for journalists remains to be insurgency-plagued Southern border provinces, where journalists covering the conflict are at risk from bombings and ambushes. For example, journalists were among the 10 injured in October 2013, when a second bomb exploded as police were investigating a bomb explosion targeting and army patrol.

Defamation case from a regulatory body

Defamation remains as a major legal threat against journalists. In 2013, the Thai Public Broadcasting Service (ThaiPBS) television station, the country’s first and only public broadcaster, was charged for criminal defamation by National Broadcasting and Telecommunications Commission (NBTC), the country’s regulator of broadcasting and telecom industries. It has been rare that a mainstream television station is charged for defamation in Thailand, as state-owned broadcasting media in general are less critical than the privately-owned media. Thai PBS’s annual budget is financed by government’s excise taxes collected from tobacco and alcohol sales.

The charges arose from a program on 14 August featuring an interview that criticized how NBTC handled expired concessions of two private mobile phone operators. The researcher from a private think tank said the mishandling caused the delay the auction for the 1800 MHz frequency spectrum, and a potential loss of 112.5 to 157.5 billion baht (3.51 to 4.92 billion USD) a year for the country. The NBTC claimed that the interviewee misinformed the public and damaged the reputation of the agency.

On 29 August 2013, the NBTC filed a criminal defamation lawsuit against both the interviewee and the host of the Thai PBS program. If found guilty, each could face a maximum jail term of two years. It must be noted that before the airing the said interview, she had given similar interviews to other newspapers and online news websites, giving exactly the same figures she told ThaiPBS.  However, none of these media was sued by the NBTC.

The NBTC told the court in a statement that it had earlier rebutted the accusation, but still Thai PBS broadcast her interview in “showing one-sided negative information”.

Thai Broadcast Journalists Association and other media organizations have publicly voiced their opposition to the prosecution, saying the NBTC should submit itself to public scrutiny and that its action amounted to an abuse of the defamation law to intimidate academics and the media. The case is now pending in the court.

Prosecution under the Computer Crime Act

The rising number of news websites and online media has also seen an increase in legal prosecution using Computer Crime Act of 2007. In August 2013, Sermsuk Kasitipradit, a news editor of Thai PBS television station, was asked to report to the police for his social media post warning people about a possible military coup. Authorities claimed Sermsuk post could have caused public panic, and afterwardthreatened to screen messages sent over the Line messaging application, which Sermsuk had used. However, the police did not file any charge against Sermsuk.

On 13 September, Thai Publica, a Thai-language news website, was sued along with others for two reports on the possible mishandling of funds at a finance cooperative. The case is now pending in a criminal court.

On 16 December, the Thai navy filed defamation charges against two reporters of Phuket Wan Tourism News, a news website based in the island province of Phuket, for a story it published on 17 July 2013 that quoted from a Reuters news report which implicated Navy officers in the trafficking of Rohingya refugees fleeing persecution in western Myanmar. The case is now impending in a Phuket court. The Thai navy has also said they would take legal action against Reuters, the originator of the story, but has not yet filed the case.

Both the Thai Publica and Phuket Wan defamation lawsuits were filed under both the Penal Code and Computer Crime Act (CCA). The problem is under the Penal Code a defamation case can be withdrawn by the injured party, this cannot be done under the CCA. This has now made it out-of-court settlements impossible for media involved in such defamation cases.

These lawsuits raise the questions about how criminal defamation law violates press freedom and freedom of expression, and how state agencies in particular are using the law to prevent media from raising legitimate governance issues. The related issue of media self-regulation over ethical lapses, raises questions on how the Thai Press council has so far refused to touch cases involving online media but which involve journalistic practice.

Content regulation in broadcasting media

In the second half of 2013, the NBTC made its first attempt to regulate content in radio and television, citing its power under the Radio and Television Operation Act of 2008. NBTC drafted a notification to bar the airing of specific content prohibited under the Act.

Section 37 of the Act prohibits radio or television broadcast of any content “that causes the toppling of a democracy with the monarch as the head of state, or that affects national security, public order or good morale, or with any act of pornographic manners, or that causes the severe mental or health degradation of the public”. The provisions continue to say that if a broadcasting licensee is negligent in allowing the airing of such prohibited content, it could lead to a suspension or revocation of its license.

In July 2013, the NBTC approved a draft notification regulating program content of radio and television, elaborating each of the type of prohibited content. The notification said a broadcasting licensee and the head of a broadcasting station have the duty of screen and cancel the airing of any prohibited content under the law. If any prohibited content has been broadcast, an authorized broadcasting commissioner could cancel the airing of any remaining program content verbally or in writing with immediate effect.

In its first draft, the agency included a section instructing how broadcast licensees should run certain kinds of programs. These programs included news reporting, political commentary, “important” social conflicts or public policy issues, expressing different opinions on the same issue, sports commentary, violence or cruelty, crimes, and children programs, etc. The draft even included provisions on disclosure of information sources and requirement of consent from information sources.

Media associations strongly protested against this first draft and demanded that the NBTC allowed stakeholders to join in drafting such a document from the beginning, not just simply taking part in a public hearing of a completed draft. In November 2013, the NBTC published a revised draft by taking out the entire section on program operations.

However, the media associations stood firm on their objection to the revised draft, arguing that the proposed notification restricted liberties of the media and people guaranteed under the constitution.

The broadcasting commission of the NBTC then decided on 6 January 2014 to seek the opinion of the Council of State, or government’s legal experts, on whether the NBTC has the power to issue such a notification and whether the draft has over-extended the scope of its authority.

So far the draft has not become law. If enacted into law, it will be the first legal document of the NBTC in exercising its authority to regulate content on radio and television.

The changing broadcasting landscape

In December 2013, the National Broadcasting and Telecommunications Commission (NBTC) held an auction of 24 licenses for national commercial digital terrestrial television. Most of the winners are already current operators of major print or broadcasting media, or broadcasting content providers. Each of the license is valid for 15 years.

The auction and the licensing will significantly change the television landscape of Thailand, since the operators under the current system run under long-term concessions from state agencies owning the stations. In short, auntion winners are the first group of private owners of terrestrial television in Thailand.

Current terrestrial analog radio and television stations are all owned by the state, mostly in the hands of the Army and Prime Minister’s Office. Thailand’s newspapers, on the other hand, are all owned by private companies, making them more aggressive in news reporting and commentary.

As of the beginning of the second quarter of 2014, the digital televisions were still testing their equipment. It remains to be seen whether these privately-owned stations will make any major change in terms of program content and news reporting, compared to the current conservative operators.

Outlook

While politics in Thailand remains volatile whether a new general elections are held or not in the second half of 2014, the media landscape seems entrenched, with politics-based divisions plaguing of mainstream media, and new media players in digital TV or online media still unable to make an immediate impact.

Issues affecting press freedom and freedom of expression—such as the lese majeste law, criminal defamation, CCA and the potential regulation of broadcast media content—will continue to make a serious dent on Thailand’s reputation of having a free media environment.