De-criminalize defamation; protect human rights defenders and press

(Bangkok, February 12, 2016)—Thailand authorities and a Thai-owned gold-mining company should immediately drop criminal defamation complaints filed against a 15-year-old schoolgirl as well as the Thai Public Broadcasting Service (Thai PBS) and four individuals employed and previously employed by Thai PBS, Fortify Rights said today. The company should also drop a civil defamation suit filed against six villagers for erecting signs regarding the mine in their community.

The mining company Tungkum Ltd. is seeking 50 million Thai Baht (US $1.4 million) in compensation as well as the revocation of Thai PBS’s operating license for five years, alleging that the accused damaged the company’s reputation and credibility with regard to its operation of an open-pit copper-gold mine in Loei Province in northeast Thailand. 

Under Section 328 of the Thai Criminal Code, criminal defamation carries sentences of up to two-years’ imprisonment or a fine of up to 200,000 Thai Baht (US $5,600).

The company is seeking an additional 50 million Thai Baht (US $1.4 million) in a civil defamation suit filed against six villagers for erecting a sign at the entrance gate of their village and other signs posted along a public road within the village calling for the closure of the mine and rehabilitation of the local environment. The sign at the village entrance read, “This Village Doesn’t Want Mining” [unofficial translation]. That trial begins today in the Loei Provincial Court and will continue February 24 to 26.

“These cases typify the egregious use of criminal defamation in Thailand to silence critics and human rights defenders,” said Amy Smith, Executive Director of Fortify Rights. “Ironically, the company is damaging its own reputation by pursuing criminal defamation charges against a child and the media. They should drop the complaints immediately.”

On September 1, 2015, Thai PBS aired a citizen-journalist news clip about a youth camp that was raising awareness about environmental protection in Wang Sa Pung District, Loei Province. A 15-year-old schoolgirl who attended the youth camp narrated the Thai PBS news clip, in which she alleged six villages in the gold mining area “have been environmentally affected from the gold mining industry.” She went on to say that “the River Huay has been contaminated,” and “villagers cannot use it for drinking or household consumption.”

On September 12, 2014, the Royal Thai Government submitted an official communication to the United Nations Office of the High Commissioner for Human Rights stating that a committee of government engineers and environmental experts found that water surrounding the Tungkum Ltd. mining operation was contaminated with cyanide, cadmium, and manganese. The Thai government further stated that “the cause of the contamination was unclear as, according to the geologists’ opinion, the area is also known to be covered by volcanic activities in the past.” 

On November 12, 2015, Tungkum Ltd. filed charges of criminal defamation under the Thai Criminal Code and the Computer Crimes Act as well as other charges against journalist Ms. Wirada Saelim; then-Director-General of Thai PBS Mr. Somchai Suwanbun; Mr. Korkhet Chantalertluk, Director of the News Department at Thai PBS and Mr. Yothin Sitthibodeekul, Director of the Television and Radio Department at Thai PBS; and Thai PBS itself. The charges allege that nationally broadcasted media and online content from the citizen-journalist news clip damaged the reputation of the company. 

The Bangkok Criminal Court scheduled a preliminary hearing on March 21, 2016 to consider the merit of the charges against Thai PBS and its employees.

“Thai PBS carried out its duties to report news and provide a platform for public discourse,” said Amy Smith. “These charges not only offend the right to freedom of expression, but also seek to deprive the Thai people of a vital media service.”

In addition, in November, 2015 the Tungkum Ltd. lodged two separate criminal defamation complaints against the 15-year-old schoolgirl—one to the Provincial Office of Juvenile Observation and Protection in Loei Province and another to the Minburi Metropolitan Police in Bangkok.

The Juvenile Observation and Protection Office and Minburi Police station are investigating the merits of the company’s complaints against the 15-year-old schoolgirl to determine whether the cases should be referred respectively to the Juvenile and Family Court and the public prosecutor.

These defamation charges and complaints infringe on the right to freedom of expression in Thailand, Fortify Rights said.

The right to freedom of expression is protected under Article 19 of the International Covenant on Civil and Political Rights (ICCPR), to which Thailand is a state party. Under international law, restrictions on freedom of expression are permissible only when they are provided by law, proportional, and necessary to accomplish a legitimate aim. The complaint and charges against the 15-year-old schoolgirl and Thai PBS and its employees represent an overly broad application of defamation laws in violation of the right to freedom of expression. 

Imprisonment for defamation is a disproportionate punishment that infringes on the right to freedom of expression, according to the UN Human Rights Committee and the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression. The UN Declaration on Human Rights Defenders also provides a set of principles to protect the work of individual human rights defenders and organizations. Thailand affirmed its commitment to protect human rights defenders through a UN General Assembly resolution adopted on December 17, 2015. 

Thailand should immediately decriminalize defamation and establish a legal framework and effective mechanisms to protect human rights defenders, Fortify Rights said.

Tungkum Ltd.’s parent company—Tongkah Harbour Plc.—received permission to conduct an initial exploration for mineral resources in Loei Province in April 1990. Tungkum Ltd. officially started operations to extract minerals from the mine in 2006. 

In 2007, villagers from six communities surrounding the mine formed a community-based group—the Khon Rak Ban Kerd Group (KRBKG)—to advocate for a clean environment and to oppose the mining operation. The KRBKG is demanding that the authorities and company permanently close down the gold mining operation, and address environmental contamination and health impacts potentially linked to the mining operation.

State and non-state actors have reportedly threatened, intimidated, and used violence against members of the KRBKG, Fortify Rights said.

For instance, on May 15, 2014, at least 100 unidentified men in black masks carrying wooden sticks, knives, and guns surrounded Na Nong Bong village—located next to the mine—and assaulted several villagers, according to witness testimony provided to the Loei Provincial Court on October 28 and 29, 2015. The unknown militia reportedly held several villagers and leaders of the KRBKG captive while trucks transported material out of the mine site and village. The incident went on for almost six hours. According to witness testimony, police failed to intervene and did not respond to several complaints by local community members that evening. The masked militiamen injured at least 13 villagers and allegedly stole property, taking a camera, a gold necklace, and money from villagers. The militia also destroyed barricades established several months earlier by local members of KRBKG that blocked the road to the mine site.

Between 2007 and 2015, Tungkum Ltd. has brought at least 19 criminal and civil lawsuits against 33 members of the KRBKG. The company has demanded 320 million Thai Baht (US $8.93 million) in compensation from villagers, not including the most recent charges against Thai PBS, for allegedly damaging the company’s business and reputation.

Fortify Rights recommended that Thai authorities and Tungkum Ltd. immediately and unconditionally withdraw all criminal complaints against the schoolgirl, Thai PBS, and the others accused of criminal defamation and to immediately drop the civil defamation suit filed against six additional villagers. Thai authorities should instead commit resources to investigate allegations of environmental contamination potentially linked to the copper-gold mine and to investigate the violent attack against villagers on May 15, 2014.

“Everyone has the right to express their opinion and the right to enjoy the highest attainable standards of health,” said Amy Smith. “Rather than investigate human rights defenders, children, and members of the press, the authorities’ should look into longstanding allegations of environmental contamination in the community.”

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