I believe it is fair to say IMO there seems to be an internal fight going on at NIVA, which has spilt over on to the board, which naturally we all look forward to reading and commenting on, however. NIVA International School has not done itself any favours by suggesting that it is going to sue either individual members or the board, which is in itself very doubtful but it does allow us the opportunity to point out the apparent inadequacy of a draconian law roundly condemned by lawmakers worldwide.
Moreover, it highlights the tendency to use Thai law in a spurious fashion as illustrated by the criminal defamation law that has in recent years been condemned globally as offensive to basic rights of free expression and publication. Many countries have recognised that criminal defamation is obsolete, and have removed it from the statute books. Unfortunately, Thailand is not among them.
Here, a person convicted under section 328 of the Penal Code may be subject to a fine of 200,000 Thai baht and two years’ imprisonment. This is an extremely backward provision entirely out of place in a modern and democratic society, and out of step with developments in international law. It is also contrary to the both the letter and spirit of the 1997 Constitution, which guarantees unrestricted freedom of expression.
The reasons that criminal defamation has been rendered obsolete are many. They have been articulated in great detail through documents issued over some years by the UN Human Rights Committee—which oversees the International Covenant on Civil and Political Rights, to which Thailand is a party—the Special Rapporteur on freedom of opinion and expression, and prominent rights groups such as Article XIX. Among the principle reasons, first, criminal defamation cases stifle free speech by intimidating others from speaking openly and directly about matters of public interest. Secondly, they improperly shift the burden of proof onto a criminal defendant. Thirdly, criminal defamation is unnecessary when civil defamation exists as an alternative.
As for civil defamation, there are also many international standards that should be considered by the courts in these cases. Among these, first, the purpose of a defamation suit should be limited to protecting a person or legal entity from public ridicule or hatred; not, by contrast, to stifle legitimate criticism of public bodies, corporations or persons, particularly where this is done in the public interest.
Secondly, a civil defamation suit should be granted only in cases where the offending statement is demonstrably false, with the burden of proof resting with the complainant. Thirdly, any remedy granted in a civil defamation suit should be with the purpose of redressing the harm caused to the complainant, not punishing the person or persons responsible for the defamation. Where the remedy granted involves payment of compensation, the amount must be proportionate to the harm done, and should take into account other factors, such as the overall negative effect on free speech that may be felt as a consequence.