Court asserting that Article 14 of the CCA not applicable with libel suit
Today (1 September 2015) at 09.00, the Provincial Court of Phuket dismissed the case filed by the Royal Thai Navy against the Phuketwan news outlet for criminal defamation and for violating the 2007 Computer Crime Act's Article 14 for reproducing a paragraph from a report by Reuters which alleges that Thai armed forces were benefiting from trafficking in persons against the sea migrants. The ruling of the Court is concerned with three major points;
1. Whether the plaintiff and authorised persons have the legal standing to bring the case to the Court?
It is deemed that in this case the injured party, a state agency, has authorized Captain Pallop Komoltok to report a case to the police. According to the evidence he has given to the Court, he had no intention to take a legal action simply because of the headlines of the report, but its content. Capt. Pallop gave further evidence that in English, ''[thai language phrase used here]'' is ''The Royal Thai Navy''. Therefore, as the term ''Naval Forces'' was mentioned in the news content, it did not specifically refer to any particular agencies, since it was a general term used for a naval force unit. And there are different naval force units, including those falling under the charge of the Internal Security Operations Command Region (ISOC). In addition, given that the term ''Forces'' used contains an ''s'', it might mislead public to think of the term ''Naval Forces'' includes the Royal Thai Navy. Therefore, a person authorised by the Royal Thai Navy had the legal standing to bring the case to the Court.
2. Whether the act of the defendants was a libelous act or not?
It is deemed that the defendants had taken the clause from a report by the Reuters news agency which is a credible and internationally known and accountable news outlet. So it is believed that the news agency has vetted the authenticity of the information and the article published by the defendants simply reproduced part of the report from Reuters. It was not the facts written by the three defendants themselves. Therefore, their act cannot be construed as an act of libel as per Article 328 of the Penal Code.
3. Whether the act of the defendants constitute an offence as per Article 14 of the 2007 Computer Crime Act
It is deemed that the clause reproduced from report of Reuters and inputted into the computer system did not contain any fabricated information or false computer data which may compromise national security or cause panic in public. It was also not an offence concerning the Chapter on National Security of the Penal Code. In addition, it is not the intent of the Computer Crime Act to hold a person culpable of criminal defamation, the offence of which is specifically provided for in Article 328 of the Penal Code.
The Phuketwan news agency is an online news outlet based in Phuket province (Phuketwan.com) featuring news in English. It is operated under the Big Island Media Co., Ltd. by Mr. Alan John Morison as an authorised director and Ms. Chutima Sidasathian, a reporter. On 17 July 2013, Phuketwan published an article regarding the exploitation of human trafficking by Thai armed forces by referring to a report by Reuters regarding a human trafficking ring in Phang Nga which states that ''Thai Military Profiting from Trade in Boatpeople, Says Special Report'' The Thai naval forces usually earn about 2000 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 (north of Phuket) and deals directly with the navy and police.'' . . . Later, the Royal Thai Navy pressed charges against them accusing that the report of contained false information which damaged the reputation of the Royal Thai Navy. The case was indicted with the Court as the Black Case no. 2161/2557 between the public prosecutor v. the Big Island Media Co., Ltd. by Mr. Alan John Morison, the authorised director as defendant no. 1, Mr. Alan John Morison, defendant no. 2 and Ms. Chutima Sidasathian, defendant no.3.
The Human Rights Lawyers Association (HRLA) and SR Law Firm have been providing legal assistance in this case setting it as a strategic litigation to set out precedence on the right to freedom of expression and freedom to disseminate information of media.
During the trial, four prosecution witnesses gave evidence including Capt. Pallop Komoltok, who was authorized by the Royal Thai Navy and who has testified to the Court how news published by Phuketwan based on a report from Reuters was false causing damage to its reputation. He failed to expound to the Court as to how the damage had been inflicted, though. Pol Capt. Anurak Klangnarong and Pol Lt Col Sanich Nookong, inquiry officials, who received the case and conducted the investigation. And Pol Let Charanyu Kruawaewong, technology crime investigation and analysis officer, who has inspecting information regarding the www.phuketwan.com and has testified to the Court that he has found that Mr. Alan Morison was the person who registered the domain name and was the administrator of the website. But the investigation was preliminary and it was not possible to determine the person who inputted the computer data.
There were seven defense witnesses including Mr Alan Morison and Ms Chutima Sidasathian who testified to the Court asserting that they had performed their duties as a professional media worker to serve public interest.
Mr Nirand Pitakwatchara, a National Human Rights Commissioner, gave evidence about how the complaint had been filed concerned the violation of the rights of media.
Ms Sawitree Suksri, a lecturer from Faculty of Law, Thammasat University, as an expert on Computer Crime Act, explained that the real intent of the law is not for holding a person accountable for criminal defamation.
Dr Wannasan Nunsuk, a lecturer from the School of Liberal Arts, Walailak University gave evidence that since the allegedly incriminating clause ''Thai naval forces'' is pluralised, it could refer to several agencies, not particularly about the Royal Thai Navy, which operates in the waters. There were also activists working with the Rohingya to give evidence to support the claim made in the report as well.
The trials today and previously have been attended by a number of international organisations and national human rights organisations including Southeast Asian Press Alliance (SEAPA), the International Commission of Jurists (ICJ), delegations from the European Union (EU), representatives from UNESCO, Human Rights Watch, the Embassy of Australia, Cross-Cultural Foundation, and iLaw, since the case involves restriction against news dissemination of mass media.
iLaw and lawyers from the Human Rights Lawyers Association (HRLA) and SR Law Firm
Bail for Chutima Sidasathian and Alan Morison was provided by the Andaman Community Rights and Legal Aid Centre, based in Trang province.
Most of the legal costs of the case are being met by the London-based Media Legal Defence Initiative.
In Thailand, a group of more than 10 lawyers teamed up to provide legal counsel. They include SR Law, the Human Rights Lawyers' Association and iLaw.
They aim to now try to have the laws used against Phuketwan repealed.