PHUKET: Thailand's controversial Computer Crime Act has been misused to prosecute defamation in restricting free speech online, expert witnesses said on Thursday at a court trial of an online defamation case in this southern island city.
''From our human rights inquiry, the Computer Crime Act has become a tool in restricting freedom of opinion,'' Dr. Niran Pitakwatchara, a national human rights commissioner, told the provincial court here as a defendant witness in a trial where the Royal Thai Navy was prosecuting Phuketwan.com, a small English-language news website for criminal defamation.
''The intention of the Computer Crime Act is to prevent and suppress computer-related crimes,'' Niran said. ''But state agencies have been using it as a tool in violating freedom of opinion.''
He said for any allegation of reputation being hurt, the defamation law under the Penal Code was the more appropriate provisions to be applied.
Phuketwan is being prosecuted for a single paragraph in a news article it published on 17 July 2013 about the alleged involvement of some naval forces in human trafficking of minority Rohingya ethnic groups out of Myanmar. The paragraph was, however, a direct quote from an award-winning investigative report by Reuters.
That paragraph said: ''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.''
A navy officer told the court on Tuesday that the Royal Thai Navy was upset by the mentioning of earning 2000 baht (about US$60) per Rohingya in the paragraph.
Dr Niran said Phuketwan editor Alan Morison, an Australian, and reporter Chutima Sidasathian, a Thai, filed a complaint of having their media freedom violated with his office after the prosecutors filed a criminal case with the court here on 17 April 2014.
Dr Niran said he held meetings twice between the two conflicting parties in trying to mediate for a settlement, but did not succeed.
He said while the navy insisted that the terms ''Thai naval forces'' in the paragraph referred to the Royal Thai Navy, Morison and Chutima said it could mean any individual or combined maritime forces.
Confused application
Sawatree Suksri, a law lecturer at Thammasat University in Bangkok, who has done research on the Computer Crime Act, separately told the court that some provisions in the law used terms with broad meaning, creating confusion in its application.
Sawatree said in particular that the current wording of Section 14 (1) of the Act allowed people to think that it could be applied to sue online defamatory statement.
Section 14 (1) says any person who is involved with importing into a computer system of forged or false computer data, in part or in whole, ''in a manner that is likely to cause damage to a third party or the public'' could be punished with imprisonment of up to five years or a fine of up to 100,000 baht (about US$2,980) or both.
The terms ''to cause damage to a third party'' have been interpreted to include damaging people's reputation, and, hence, the provisions have been applied to prosecute online defamation.
Sawatree said the provisions were meant to prosecute forging of documents electronically as before the enforcement of the Computer Crime Act in July 2007, there was no law that could deal specifically with such a crime.
She said penalty of Section 14 (1) was also much higher than that of defamation provisions under the Penal Code, which allow for only up to two years of imprisonment.
The prosecutors of this case were, again, absent from the entire hearing on Thursday. They told the court on Wednesday that they did not want to cross-examine the two defendants and their witnesses. The absence of prosecutors in court trials is not uncommon.
The hearing of the Phuketwan case has finished as the court has now heard the arguments of both the prosecutors and defendants. The court set the first of September 2015 as the date for its verdict reading.
Morison and Chutima, if found guilty, could each face up to five years of imprisonment or a fine of up to 100,000 baht (about US$2,980) or both under the Computer Crime Act for publishing and disseminating false information that hurt the navy's reputation. The navy does not seek any financial damages from them.
No Intention to Defame Thai Navy, Say Defendants
THE TWO defendants in an online defamation case in this southern island city told the court on Wednesday that they had no intention to defame the Royal Thai Navy in their story about smuggling of minority Rohingya ethnic groups out of Myanmar.
Alan Morison, 67, and Chutima Sidasathian, 33, the two journalists at Phuketwan.com, a small English-language news website, said separately that they have published a navy statement in denying its involvement in any human trafficking, and have actually written many other stories praising the navy for its contribution to social and environmental works in the south.
''We had good relations with the navy before the case,''Morison told the court. ''And we still maintain a good relationship.''
Absent prosecutors
Meanwhile, the prosecutors of this case told the court before the start of Wednesday's proceedings that they would not want to cross-examine the two defendants and, hence, were absent from the entire hearing. The absence of prosecutors in court trials is not uncommon.
Four witnesses were produced by the prosecutors on Tuesday and the plaintiff has since exhausted its witnesses.
Morison and Chutima took the witness stand on Wednesday in beginning the hearing of defendants' witnesses.
The lawsuit was brought up against Phuketwan.com by the Royal Thai Navy out of a news article published on the news website on 17 July 2013, that was headlined ''Thai Military Profiting from Trade in Boatpeople, Says Special Report,'' which was mainly excerpts from an award-winning investigative report by Reuters.
In the complaint filed by state prosecutors on 17 April 2014 with Phuket provincial court, the navy, however, cited only one paragraph that it alleged to be defamatory in the story published in Phuketwan.
That paragraph said: ''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.''
Navy Captain Pallop Komalodaka, deputy director of intelligence division, Third Naval Area Command, whose jurisdiction covers Phuket, told the court on Tuesday that the navy was not suing the news website for the headline or any other part of the story.
It has been established clearly to the court that the paragraph claimed to be defamatory was a direct quote from Reuters.
Seeking comments
Morison said before he sent the story out for publishing, Chutima had tried to call some navy officers for comments about the Reuters story, but could not get a hold on any of them after several phone calls.
Nor did the two receive any return call from any naval officer.
He said three days after the publication of the paragraph in question, Phuketwan wrote another story based on a statement by the navy in denying any of its involvement in human trafficking.
In a separate testimony, Chutima said she has learnt that Prime Minister General Prayut Chan-ocha had written a letter in asking General Prawit Wongsuwan, a deputy premier and the defence minister, to help mediating for the navy's withdrawal of the case.
Chutima said there had been several rounds of negotiations with the navy, which stood firm on its demand for an unambiguous apology from Phuketwan.
She said an apology would mean that the news website admitted publishing false information.
''We have no intention to hurt anyone,'' said Chutima, who has been investigating the Rohingya issue for years and is doing her doctorate dissertation at a university in southern Thailand on the issue. ''We just hope that the problem would be solved.''
Morison and Chutima said the smuggling and trading of Rohingya is a public interest issue, of which the public should be aware and the Thai government should examine into it.
Five other witnesses, including Dr. Niran Pitakwatchara, a national human rights commissioner, and Abdul Karlam, a Rohingya leader, are scheduled to testify for the defendants on Thursday.
Morison and Chutima, if found guilty, could each face up to five years of imprisonment under the Computer Crime Act for publishing and disseminating false information that hurt the navy's reputation.
The navy does not seek any financial damages from them.
Defamation Trial of Phuketwan Journalists Starts Under International Watch
THE TRIAL of an online defamation case against two journalists of a small news website located in this southern island city began Tuesday under the watch of many international and regional human rights and media organisations for its possible effect on press freedom under the country's military regime.
The lawsuit was brought up against English-language Phuketwan.com by the Royal Thai Navy out of a news article published on the news website on 17 July 2013, that was headlined ''Thai Military Profiting from Trade in Boatpeople, Says Special Report''.
The story was about the smuggling of minority Rohingya ethnic groups out of Myanmar and was mainly excerpts from an award-winning investigative report by Reuters.
One defamatory paragraph
In the complaint filed by state prosecutors on 17 April 2014 with Phuket provincial court, the navy, however, cited only one paragraph that it alleged to be defamatory in the story published in Phuketwan.
That paragraph said: ''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.''
The prosecutors claimed that Alan Morison, 67, and Chutima Sidasathian, 33, the two journalists at Phuketwan, and Big Island Media Co., Ltd., which operates the website and is represented by Morison, jointly put the false statement into the computer system of Phuketwan, harming the navy's reputation.
Testifying as the key witness of the prosecutors, Navy Captain Pallop Komalodaka, deputy director of intelligence division, Third Naval Area Command, whose jurisdiction covers Phuket, said he first found the story in Phuketwan and since Phuketwan referred to Reuters as its source of information, he later located the original story on Reuters websites.
Pallop admitted that the same Reuters story was also published in other Thai-language media.
But he told SEAPA privately that he could not find the paragraph the navy claimed to be defamatory in other Thai media.
Although the original Reuters story included many details of the Rohingya smuggling and trade and the alleged involvement of various Thai government agencies, Pallop said it was the mentioning of earning about 2000 baht per Rohingya that upset the navy.
He said though he was not fluent in the English language, it was some linguistic experts in the navy who interpreted the paragraph in question and found it defamatory.
Pallop told the court that usually various Thai units separately patrol the sea.
But since the paragraph said ''the Thai naval forces,'' it did refer to and, hence, defamed the Royal Thai Navy. He said specifically that the navy was not prosecuting Phuketwan for the story headline.
He said if it would be a joint patrol by various units of the Thai government, the wording should have been ''maritime forces''.
He explained this to the court as the defence lawyers were trying to establish that the words ''the Thai naval forces'' did not refer to the Royal Thai Navy as an institution, but could probably be some individual local forces.
However, it was established to the court that the allegedly defamatory paragraph was written by Reuters.
''It is taken from Reuters word by word,'' Pallop said in answering a cross-examination question from a defence lawyer.
Pallop said the navy has also filed charges against Reuters for its original story; but since it was an international news agency, the matter is now in the hand of the Office of Attorney General.
He said he was unaware of the current status of the charges against Reuters.
Pallop admitted that in other parts of the story published in Phuketwan, the navy was praised for helping the Rohingya boatpeople occasionally, and that Phuketwan has published another story on the navy's denial of taking any profit from the Rohingya smuggling.
He also said the navy still maintained a good relationship with Phuketwan.
Police witnesses
After Pallop, the prosecutors produced three other police officers as witnesses, who were an information and communication technology officer from Bangkok and two local officers in Phuket.
Police Lieutenant Jarunyu Kruawangmon, the ICT officer, told the court that he was able to establish that the information used in registering the Phuketwan website belonged to Morison and that the IP address used in entering it was located in the United States.
Police Lieutenant Colonel Sanich Nukong, the main police investigator of the case in Phuket, told the court that after the navy filed the charges, he did not check the accuracy of the Thai translation of the paragraph in question against the original English language.
Neither did he investigate into any computer traffic data to find out who put the Phuketwan story into the computer system.
Apart from SEAPA, UNESCO, Reporters Without Borders, International Commission of Jurists and Australian embassy in Bangkok sent representatives to observe this trial, whereby a negative judgment for Phuketwan could further intimidate local media already under tough restrictions from the military junta.
The prosecutors have already exhausted their witnesses.
Morison and Chutima testify on Wednesday to defend themselves. Five other witnesses, including Dr Niran Pitakwatchara, a national human rights commissioner, are scheduled to testify for the defendants on Thursday.
Morison and Chutima, if being found guilty, could each face up to five years of imprisonment. The navy does not seek any financial damages from them.
Authorities Should Thank, Not Sue Phuketwan Journalists
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 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 favor 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.
Singled out?
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.
[Phuketwan journalists have always been told that far from being rendered infertile, the Computer Crimes Act count would have to proceed to court - along with their apology for the criminal defamation, which would amount to a guilty plea.]
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 up at the camp gate but she managed to have it taken down later.
Developments post-coup
There has been an increasing concern that political suppression and tighter media censorship after the 22 May 2014 coup would create an unfavorable 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.
Criminal defamation
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 the government identify entry points to address the crisis.
Southeast Asian Press Alliance, seapa.org
The trial of the Phuketwan journalists concluded yesterday at Phuket Provincial Court after three days of testimony. A verdict is scheduled to be delivered on September 1.
''From our human rights inquiry, the Computer Crime Act has become a tool in restricting freedom of opinion,'' Dr. Niran Pitakwatchara, a national human rights commissioner, told the provincial court here as a defendant witness in a trial where the Royal Thai Navy was prosecuting Phuketwan.com, a small English-language news website for criminal defamation.
''The intention of the Computer Crime Act is to prevent and suppress computer-related crimes,'' Niran said. ''But state agencies have been using it as a tool in violating freedom of opinion.''
He said for any allegation of reputation being hurt, the defamation law under the Penal Code was the more appropriate provisions to be applied.
Phuketwan is being prosecuted for a single paragraph in a news article it published on 17 July 2013 about the alleged involvement of some naval forces in human trafficking of minority Rohingya ethnic groups out of Myanmar. The paragraph was, however, a direct quote from an award-winning investigative report by Reuters.
That paragraph said: ''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.''
A navy officer told the court on Tuesday that the Royal Thai Navy was upset by the mentioning of earning 2000 baht (about US$60) per Rohingya in the paragraph.
Dr Niran said Phuketwan editor Alan Morison, an Australian, and reporter Chutima Sidasathian, a Thai, filed a complaint of having their media freedom violated with his office after the prosecutors filed a criminal case with the court here on 17 April 2014.
Dr Niran said he held meetings twice between the two conflicting parties in trying to mediate for a settlement, but did not succeed.
He said while the navy insisted that the terms ''Thai naval forces'' in the paragraph referred to the Royal Thai Navy, Morison and Chutima said it could mean any individual or combined maritime forces.
Confused application
Sawatree Suksri, a law lecturer at Thammasat University in Bangkok, who has done research on the Computer Crime Act, separately told the court that some provisions in the law used terms with broad meaning, creating confusion in its application.
Sawatree said in particular that the current wording of Section 14 (1) of the Act allowed people to think that it could be applied to sue online defamatory statement.
Section 14 (1) says any person who is involved with importing into a computer system of forged or false computer data, in part or in whole, ''in a manner that is likely to cause damage to a third party or the public'' could be punished with imprisonment of up to five years or a fine of up to 100,000 baht (about US$2,980) or both.
The terms ''to cause damage to a third party'' have been interpreted to include damaging people's reputation, and, hence, the provisions have been applied to prosecute online defamation.
Sawatree said the provisions were meant to prosecute forging of documents electronically as before the enforcement of the Computer Crime Act in July 2007, there was no law that could deal specifically with such a crime.
She said penalty of Section 14 (1) was also much higher than that of defamation provisions under the Penal Code, which allow for only up to two years of imprisonment.
The prosecutors of this case were, again, absent from the entire hearing on Thursday. They told the court on Wednesday that they did not want to cross-examine the two defendants and their witnesses. The absence of prosecutors in court trials is not uncommon.
The hearing of the Phuketwan case has finished as the court has now heard the arguments of both the prosecutors and defendants. The court set the first of September 2015 as the date for its verdict reading.
Morison and Chutima, if found guilty, could each face up to five years of imprisonment or a fine of up to 100,000 baht (about US$2,980) or both under the Computer Crime Act for publishing and disseminating false information that hurt the navy's reputation. The navy does not seek any financial damages from them.
July 15
No Intention to Defame Thai Navy, Say Defendants
THE TWO defendants in an online defamation case in this southern island city told the court on Wednesday that they had no intention to defame the Royal Thai Navy in their story about smuggling of minority Rohingya ethnic groups out of Myanmar.
Alan Morison, 67, and Chutima Sidasathian, 33, the two journalists at Phuketwan.com, a small English-language news website, said separately that they have published a navy statement in denying its involvement in any human trafficking, and have actually written many other stories praising the navy for its contribution to social and environmental works in the south.
''We had good relations with the navy before the case,''Morison told the court. ''And we still maintain a good relationship.''
Absent prosecutors
Meanwhile, the prosecutors of this case told the court before the start of Wednesday's proceedings that they would not want to cross-examine the two defendants and, hence, were absent from the entire hearing. The absence of prosecutors in court trials is not uncommon.
Four witnesses were produced by the prosecutors on Tuesday and the plaintiff has since exhausted its witnesses.
Morison and Chutima took the witness stand on Wednesday in beginning the hearing of defendants' witnesses.
The lawsuit was brought up against Phuketwan.com by the Royal Thai Navy out of a news article published on the news website on 17 July 2013, that was headlined ''Thai Military Profiting from Trade in Boatpeople, Says Special Report,'' which was mainly excerpts from an award-winning investigative report by Reuters.
In the complaint filed by state prosecutors on 17 April 2014 with Phuket provincial court, the navy, however, cited only one paragraph that it alleged to be defamatory in the story published in Phuketwan.
That paragraph said: ''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.''
Navy Captain Pallop Komalodaka, deputy director of intelligence division, Third Naval Area Command, whose jurisdiction covers Phuket, told the court on Tuesday that the navy was not suing the news website for the headline or any other part of the story.
It has been established clearly to the court that the paragraph claimed to be defamatory was a direct quote from Reuters.
Seeking comments
Morison said before he sent the story out for publishing, Chutima had tried to call some navy officers for comments about the Reuters story, but could not get a hold on any of them after several phone calls.
Nor did the two receive any return call from any naval officer.
He said three days after the publication of the paragraph in question, Phuketwan wrote another story based on a statement by the navy in denying any of its involvement in human trafficking.
In a separate testimony, Chutima said she has learnt that Prime Minister General Prayut Chan-ocha had written a letter in asking General Prawit Wongsuwan, a deputy premier and the defence minister, to help mediating for the navy's withdrawal of the case.
Chutima said there had been several rounds of negotiations with the navy, which stood firm on its demand for an unambiguous apology from Phuketwan.
She said an apology would mean that the news website admitted publishing false information.
''We have no intention to hurt anyone,'' said Chutima, who has been investigating the Rohingya issue for years and is doing her doctorate dissertation at a university in southern Thailand on the issue. ''We just hope that the problem would be solved.''
Morison and Chutima said the smuggling and trading of Rohingya is a public interest issue, of which the public should be aware and the Thai government should examine into it.
Five other witnesses, including Dr. Niran Pitakwatchara, a national human rights commissioner, and Abdul Karlam, a Rohingya leader, are scheduled to testify for the defendants on Thursday.
Morison and Chutima, if found guilty, could each face up to five years of imprisonment under the Computer Crime Act for publishing and disseminating false information that hurt the navy's reputation.
The navy does not seek any financial damages from them.
July 15
Defamation Trial of Phuketwan Journalists Starts Under International Watch
THE TRIAL of an online defamation case against two journalists of a small news website located in this southern island city began Tuesday under the watch of many international and regional human rights and media organisations for its possible effect on press freedom under the country's military regime.
The lawsuit was brought up against English-language Phuketwan.com by the Royal Thai Navy out of a news article published on the news website on 17 July 2013, that was headlined ''Thai Military Profiting from Trade in Boatpeople, Says Special Report''.
The story was about the smuggling of minority Rohingya ethnic groups out of Myanmar and was mainly excerpts from an award-winning investigative report by Reuters.
One defamatory paragraph
In the complaint filed by state prosecutors on 17 April 2014 with Phuket provincial court, the navy, however, cited only one paragraph that it alleged to be defamatory in the story published in Phuketwan.
That paragraph said: ''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.''
The prosecutors claimed that Alan Morison, 67, and Chutima Sidasathian, 33, the two journalists at Phuketwan, and Big Island Media Co., Ltd., which operates the website and is represented by Morison, jointly put the false statement into the computer system of Phuketwan, harming the navy's reputation.
Testifying as the key witness of the prosecutors, Navy Captain Pallop Komalodaka, deputy director of intelligence division, Third Naval Area Command, whose jurisdiction covers Phuket, said he first found the story in Phuketwan and since Phuketwan referred to Reuters as its source of information, he later located the original story on Reuters websites.
Pallop admitted that the same Reuters story was also published in other Thai-language media.
But he told SEAPA privately that he could not find the paragraph the navy claimed to be defamatory in other Thai media.
Although the original Reuters story included many details of the Rohingya smuggling and trade and the alleged involvement of various Thai government agencies, Pallop said it was the mentioning of earning about 2000 baht per Rohingya that upset the navy.
He said though he was not fluent in the English language, it was some linguistic experts in the navy who interpreted the paragraph in question and found it defamatory.
Pallop told the court that usually various Thai units separately patrol the sea.
But since the paragraph said ''the Thai naval forces,'' it did refer to and, hence, defamed the Royal Thai Navy. He said specifically that the navy was not prosecuting Phuketwan for the story headline.
He said if it would be a joint patrol by various units of the Thai government, the wording should have been ''maritime forces''.
He explained this to the court as the defence lawyers were trying to establish that the words ''the Thai naval forces'' did not refer to the Royal Thai Navy as an institution, but could probably be some individual local forces.
However, it was established to the court that the allegedly defamatory paragraph was written by Reuters.
''It is taken from Reuters word by word,'' Pallop said in answering a cross-examination question from a defence lawyer.
Pallop said the navy has also filed charges against Reuters for its original story; but since it was an international news agency, the matter is now in the hand of the Office of Attorney General.
He said he was unaware of the current status of the charges against Reuters.
Pallop admitted that in other parts of the story published in Phuketwan, the navy was praised for helping the Rohingya boatpeople occasionally, and that Phuketwan has published another story on the navy's denial of taking any profit from the Rohingya smuggling.
He also said the navy still maintained a good relationship with Phuketwan.
Police witnesses
After Pallop, the prosecutors produced three other police officers as witnesses, who were an information and communication technology officer from Bangkok and two local officers in Phuket.
Police Lieutenant Jarunyu Kruawangmon, the ICT officer, told the court that he was able to establish that the information used in registering the Phuketwan website belonged to Morison and that the IP address used in entering it was located in the United States.
Police Lieutenant Colonel Sanich Nukong, the main police investigator of the case in Phuket, told the court that after the navy filed the charges, he did not check the accuracy of the Thai translation of the paragraph in question against the original English language.
Neither did he investigate into any computer traffic data to find out who put the Phuketwan story into the computer system.
Apart from SEAPA, UNESCO, Reporters Without Borders, International Commission of Jurists and Australian embassy in Bangkok sent representatives to observe this trial, whereby a negative judgment for Phuketwan could further intimidate local media already under tough restrictions from the military junta.
The prosecutors have already exhausted their witnesses.
Morison and Chutima testify on Wednesday to defend themselves. Five other witnesses, including Dr Niran Pitakwatchara, a national human rights commissioner, are scheduled to testify for the defendants on Thursday.
Morison and Chutima, if being found guilty, could each face up to five years of imprisonment. The navy does not seek any financial damages from them.
July 14
Authorities Should Thank, Not Sue Phuketwan Journalists
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 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 favor 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.
Singled out?
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.
[Phuketwan journalists have always been told that far from being rendered infertile, the Computer Crimes Act count would have to proceed to court - along with their apology for the criminal defamation, which would amount to a guilty plea.]
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 up at the camp gate but she managed to have it taken down later.
Developments post-coup
There has been an increasing concern that political suppression and tighter media censorship after the 22 May 2014 coup would create an unfavorable 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.
Criminal defamation
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 the government identify entry points to address the crisis.
Southeast Asian Press Alliance, seapa.org
The trial of the Phuketwan journalists concluded yesterday at Phuket Provincial Court after three days of testimony. A verdict is scheduled to be delivered on September 1.
"..a tool in restricting freedom of opinion.."
And Lest We Forget - a tool to shut down a little website that didn't even state an opinion one way or the other - Alan and Chutima just copied an excerpt that won Reuters a Pulitzer Prize.
Where's the devious opinion in that to justify shutting down the site, never mind jail time (again) in that damned place?
The Prosecution must now INFER that a negative opinion (against the Thai Royal Navy specifically and exclusively - being precise and on-point) existed in the minds of the two Phuketwan reporters to convict them; the problem is: inferring is a false premise, a slippery-sloped argument fraught with subjective difficulties.
The onus is now on the Prosecution to prove intent of malice on the part of the Phuketwan journalists by dint of them reporting the already-reported (albeit only a small fraction of it).
There's no malice that could possibly be inferred from that - none!
It's impossible, and utterly absurd to comprehend how the Prosecution could somehow manage to massage and "smoke and mirror" that one.
It's called Reporting 101 what Alan and Chutima did - standard practice in the civilized world. Ho hum.
Some people need to give their heads a collective shake in private, look in the mirror and not flinch, thus not losing face at all - another miracle it would be indeed, along the lines of walking on water, but miracles do happen. We want one now.
In any case, Thai society will never be the same either way, as light has started shining in dark places thanks to the two brave, unflinching reporters.
In that regard Alan and Chutima have already won - regardless of the final verdict. I wonder if the Royal Thai Navy is cognizant of that fact?
Posted by farang888 on July 17, 2015 09:30