Drop Defamation Complaints Against Rights Defenders

The company - a Thai-owned poultry company inLopburi Province - should also withdraw all criminal complaints andunsubstantiated civil complaints against other migrant workers and human rightsdefenders for their involvement in peaceful activities protected byinternational human rights law.

We further call on the Thai authorities toensure that no person is prosecuted or held criminally liable for defamationfor activities protected under international law. The government should decriminalizedefamation in Thai law and protecting individuals and human rights defenders fromabusive litigation aimed at curtailing the exercise of freedom of expression.

The complaints relate to a 107-second film produced by the non-governmental organization FortifyRights about previous defamation complaints brought by Thammakaset against 14 ofits former workers from Myanmar. In the film, released in October 2017, three formerworkers described how the company brought criminal defamation charges againstthem after the workers reported labor violations to the Thai authorities,including unlawfully low wages, failure to pay overtime wages, and confiscationof their identity documents, including passports. In the film, FortifyRights urged that the company drop the criminal charges against the 14 migrantworkers and called on Thailand to decriminalize defamation.

In October 2018, Thammakaset filed criminaland civil defamation complaints against Nan Win, one of the migrant workersfeatured in the film, and Sutharee Wannasiri, a woman human rights defender anda former Human Rights Specialist with Fortify Rights.

If convicted of the criminal defamationcharges filed in the case, Nan Win faces up to four years in prison and up to 400,000Thai Baht (US$12,100) in fines and Sutharee Wannasiri faces up to six years inprison and up to 600,000 Thai Baht (US$18,150) in fines. Thammakaset alsobrought civil defamation complaints against Sutharee Wannasiri, seeking fivemillion Thai Baht (US$151,400) in compensation for alleged damage to the company’sreputation.

We are deeply concerned by Thammakaset’s continued attempts to misuse lawsin Thailand to stifle the peaceful activities of human rights defenders protectedunder international human rights law and Thai law, curtailing the exercise of freeexpression in Thailand.

Prior to these most recent complaints, Thammakaset brought criminaldefamation complaints against 14 migrant workers and former employees inOctober 2016, criminal defamation complaints against labor rights activist AndyHall in November 2016, theft charges against two migrant workers in August2017 for removing timesheets from company grounds, and similar alleged theftcharges against woman human rights defender and coordinator of the MigrantWorker Rights Network (MWRN) Suthasinee Kaewleklai.

Thailand should act to ensure all persons, including migrant workers andhuman rights defenders can freely exercise their rights without fear ofreprisals, including harassment by specious legal complaints through StrategicLitigation Against Public Participation (SLAPP) lawsuits. The complaintsbrought by Thammakaset appear to be designed to intimidate and harass workersand human rights defenders and constitute an unnecessary and disproportionateinterference on the rights to freedom of expression and access to information. Thaiauthorities should pro-actively intervene with Thammakaset management anddiscuss the range of steps the Thai government is ready to take against thecompany for bringing spurious complaints targeting its workers and rightsdefenders at the courts.

As noted above, we further call on the Thai government to make defamationexclusively a civil and non-legal infraction. Under international human rights law,including the International Covenant on Civil and Political Rights (ICCPR), towhich Thailand is a party, imprisonment for acts of defamation is inherentlydisproportionate and therefore can never be an appropriate sanction. The UNHuman Rights Committee, the body tasked with overseeing the implementation ofthe ICCPR, has recommended thatStates decriminalize defamation and has clarified that defamation laws mustensure they do not serve, in practice, to contravene the rights to freedom ofexpression and information protected under article 19 of the Covenant andenshrined under articles 34, 35 and 36 of the 2017 Constitution of Thailand.While civil measures such as penalties may be appropriate to achieve the lawfulaim of protection of reputation, the imposition of such measures must beproportionate and strictly necessary to that end.

The UN Declaration on Human Rights Defenders also affirms the obligationof States to ensure human rights defenders are able to exercise their rights. On December 24, 2017, Thailand joined the latest consensusUN resolution on human rights defenders, affirming its commitment to respectthe rights of human rights defenders and address adverse human rights impactsrelated to their activities. This reinforcesthe existing commitments of the UN Declaration on Human Rights Defenders, whichaffirms that all States must protect the right to seek, obtain, receive andhold information relation to human rights and to impart that information toothers, and to ensure that human rights defenders can exercise this right.

To uphold its commitments under domestic and international law, the Thaiauthorities should act to prevent further spurious SLAPP complaints being filedby Thammakaset and other companies that target workers and human rightsdefenders. Action to end SLAPP lawsuits is in line with the promotingresponsible, rights respecting business practices that the current Thaigovernment is supporting as part of developing a national action plan onbusiness and human rights. We urge Thai authorities in this regard to enactlegislative protections to protect individuals from legal harassment throughSLAPP lawsuits including, but not limited to, instituting effective protectiveprovisions in the Thai Criminal Procedure Code.

Under theICCPR and international human rights law more generally, Thailand also has anobligation to protect people from having their rights interfered with byprivate actors, including businesses. This protective obligation is affirmed by the UN Guiding Principles onBusiness and Human Rights (UN Guiding Principles) as well as domestic Thai law. In that regard, we further encourage the Thai government to remindbusiness entities in Thailand of their responsibility to uphold human rightsunder international law, including the UN Guiding Principles, as well as domesticThai law. In August 2018, Thailand launched a revised draft National Action Plan on Business and Human Rights inorder to implement the UN Guiding Principles.

On its first official visit to Thailand, the UN WorkingGroup on Business and Human Rights called on the Thai government to “ensurethat defamation cases are not used by businesses as a tool to underminelegitimate rights and freedoms of affected rights holders, civil societyorganizations and human rights defenders.”

The complaints against Nan Win, Sutharee Wannasiri, and others facinglegal harassment must immediately be dismissed and any further injustice to humanrights defenders stopped.

Background:

Prior to these most recent complaints, Thammakaset Co. Ltd. broughtcriminal defamation charges against 14 migrant workers and former employees inOctober 2016 after the workers alleged that the company had committed seriouslabor law violations. On November 4, 2016, Thammakaset Co. Ltd. also filedcriminal defamation complaints against Andy Hall for social media posts aboutthe charges against the workers. In August 2017, Thammakaset Co. Ltd. filedcriminal suits against two migrant workers for alleged theft of theiremployment timecards, which they had presented as evidence of laborviolations. In October 2017, ThammakasetCo. Ltd. filed a criminal suit against Ms. Suthasinee Kaewleklai for a similaralleged theft of employment timecards.

In these previous cases, Thai courts rightly dismissed the chargesbrought by Thammakaset. In July, the Don Muang Court dismissed the criminaldefamation charges against the 14 migrant workers, finding that the migrantworkers filed the complaints of labor violations to the National Human RightsCommission of Thailand in good faith and without false information. InSeptember 2018, the Lopburi Provincial Court also dismissed complaintsregarding the alleged theft of timecards filed by the company against the twomigrant workers and Suthasinee Kaewleklai. In addition, in September, theSupreme Court upheld an order issued by the Department of Labor Protection andWelfare in Lopburi Province in August 2016 requiring Thammakaset Co. Ltd. topay 1.7 million Thai Baht (US$51,470) in compensation to the 14 workers forviolations of Thailand’s Labor Protection Act.

In a similar case of legal harassment launched by Natural Fruit CompanyLtd. against labor activist Andy Hall in May 2018, Thailand’s Court of Appealacquitted him of criminal charges filed against him under criminal defamationlaws and the Computer Crimes Act. In its judgment, the Court importantly ruledthat his research on labor rights violations in Thailand was in the publicinterest for the benefit of consumers.

Signed:

1. Amnesty International

2. Article 19

3. ASEAN Parliamentariansfor Human Rights

4. Asia Pacific Forum onWomen, Law and Development

5. Community ResourceCentre Foundation

6. Cross CulturalFoundation

7. Environmental JusticeFoundation

8. FIDH (InternationalFederation for Human Rights), within the framework of the Observatory forthe Protection of Human Rights Defenders

9. Fortify Rights

10. Forum Asia

11. Human Rights Watch

12. InternationalCommission of Jurists

13. InternationalFederation of Journalists

14. Liberty Shared

15. Migrant Workers RightsNetwork 16. World Organisation Against Torture (OMCT), withinthe framework of the Observatory for the Protection of Human Rights Defenders