The Internet has made information dissemination fast and far-reaching, but it has also facilitated defamation, as individuals can easily post harmful opinions. Despite Thai and international laws addressing defamation, the ease of online communication and the perceived freedom of expression continue to encourage such behavior. Defamation on social media often causes greater harm than traditional forms, as damaging content spreads rapidly and widely, drawing global criticism and potentially leaving victims humiliated before legal measures are completed.
While freedom of expression is a basic right, there is a growing need for protective mechanisms to address defamation online. Authorities should be empowered to monitor and swiftly remove defamatory content, and specific penalties for social media defamation may need to be established. The Internet, despite its benefits in connecting people and promoting self-expression, has emboldened some to act recklessly under the veil of anonymity, exacerbating the frequency and impact of defamatory statements.
In this article, Ravenwing will provide a detailed explanation and guide on how to deal with online defamation, breaking it down into easy-to-understand points for greater clarity.
1.) Rights and Freedoms under the 2017 Constitution
The Constitution is the supreme law of the country. The rights and freedoms of the people are guaranteed and protected under the Constitution. No law shall conflict with the principles protected under the Constitution.
Freedom of expression is guaranteed in Section 34, which states: “A person shall have the freedom to express his/her opinions, speak, write, print, advertise, and communicate by other means. Such freedom shall not be restricted except by virtue of the power under the provisions of law specifically enacted to preserve national security, to protect the rights or freedoms of others, to maintain peace and order or good morals of the people, or to protect public health." There are also provisions on freedom of communication.
In Section 36, it is stated: “People shall have the freedom to communicate with each other in any way whatsoever. Censorship, detention, or disclosure of information that people communicate with each other, including any action to know or obtain information communicated between individuals, shall not be made available except by court order, warrant, or other legal grounds."
It can be seen that Thailand has guaranteed and protected freedom of expression and freedom of communication. However, the expression of opinions must be an exercise of one's own freedom under the principle of honesty and must not affect the freedom of others, the security of the state, peace and order, good morals, or public health.
2.) What is Online Defamation?
Online defamation occurs when a person makes false accusations against another individual through speech, writing, or any other form of communication. This includes statements made to a third party that could harm the person’s reputation, leading to them being despised or hated, regardless of whether the defamatory content is true or not. The law seeks to prevent social unrest by prohibiting discussions that may harm others, especially when done via the Internet or social media to attack or tarnish the image of a person or group.
Acts such as spreading false information, concealing the truth, or using offensive or vulgar language to harm others online—like posting exaggerated or inappropriate comments on social media—are forms of online defamation. These actions can have severe psychological and emotional impacts on the targeted individual and damage their reputation and online credibility. Additionally, online defamation can have legal consequences, including breaches of privacy or the dissemination of misleading information. Thus, it is crucial to engage politely and respectfully in online interactions to foster a positive and supportive community.
There are Two Cases of Defamation:
1. General Defamation: This involves defaming another person to a third party. It is characterized by making accusations about someone or a group of people without it being a public announcement. For example, if someone makes defamatory remarks in a private setting, such as a small group or personal conversation, it is considered general defamation.
2. Defamation by Advertising: This type of defamation occurs when defamatory content is made public, such as publishing harmful statements on social media, in newspapers, or on any widely accessible platform. Since the defamatory message can be seen by the general public, the damage is more extensive, leading to higher legal penalties. Examples include posting defamatory content on Facebook or publishing it in the news. The key difference lies in the public nature of the announcement, which makes the offense more serious.
Example: If Mr. A defames Mr. B in a private Line group of five friends, it is considered general defamation. However, if Mr. A posts defamatory statements about Mr. B on Facebook with a public view setting, this act becomes defamation by advertising.
Example of a Supreme Court Decision: Case No. 5276/2562 clarifies that defamation must clearly identify the person being defamed to be actionable under Sections 326 and 328 of the Criminal Code. If the defamatory message is circulated within a closed group, like a Line group limited to specific people, it does not qualify as defamation by advertising. Therefore, it does not meet the criteria for higher penalties under Section 328, as the message is not made public.
3.) Behavior That Risks Being Charged with Online Defamation
3.1 Posting Insults Without Mentioning Names Through Social Media Channels
Social media is a digital platform widely used for communication, exchanging opinions, and sharing stories with the public via the internet. Major social media providers include Facebook, YouTube, Instagram, TikTok, and Twitter. Whether it is an anonymous post on Facebook or a vague post on social media that does not seem to specifically target anyone, if the general public or netizens read or listen and immediately understand who is being referred to—even if no name is mentioned or any person is named—this type of post can still be considered defamation.
However, if the general public or netizens read the vague post and do not immediately know who is being referred to but later search for more information and figure it out on their own, this is not considered defamation. The law focuses on the immediate understanding of the general public. If the post is vague and requires further research for the public to identify the person being referred to, it will not be deemed defamatory.
On the other hand, if the person who feels targeted knows very well that the vague post is referring to them, but netizens do not immediately recognize the individual being referred to, this still does not qualify as defamation. In this case, the law considers the understanding of the general public as the main principle, rather than the understanding of the person who feels insulted. Therefore, posting vague insults or engaging in social media bullying that does not mention another party’s name is considered defamation only if it allows the "general public" to “instantly” understand who is being referred to without needing to ask or research further.
3.2 Posting to Expose the Truth
Even if the story posted on Facebook is “true,” it can still constitute a defamation offense if the intent is to defame by expressing opinions dishonestly, particularly if personal matters are exposed that do not serve the public interest but cause harm to someone's reputation and incite hatred. In situations where legal action is possible, such as suing relevant agencies or debtors who fail to pay their debts but choose to expose them on Facebook or via public posts, defamation could still be charged. Additionally, there may be defamation by advertising if the intention behind the post is to ensure the information reaches a broad audience, which can result in more severe penalties. In such cases, it is crucial to evaluate the intent and method of disseminating the exposed information.
3.3 Insulting in Chat
Insulting someone through chat, such as sending insulting messages via Facebook inbox or engaging in online bullying between two individuals, may not necessarily be grounds for a lawsuit under contempt of court or defamation laws. According to the law, “contempt of court” applies when both parties are directly involved in an encounter, not when insulting messages are exchanged privately through chat or phone. Even in cases of severe cyberbullying, such as threats of harm or death, these messages may fall under defamation law if they are intended to be seen by a third party. The critical factor is that the defamatory chat message is meant to be viewed by others. If a third party accidentally sees the insulting message, reads it in a private inbox, or if the recipient later publishes the chat, it is not considered defamation unless the intent was to publicly damage the person's reputation. However, if the chat messages are used to extort money, blackmail, or coerce someone into actions against their will, they could lead to legal action based on the specifics of the case.
3.4 Posting Pictures of Others Without Permission
Posting pictures of others without their consent, whether by taking photos and sharing them on Facebook or combining such images with defamatory messages, can lead to legal consequences. If these actions cause annoyance, embarrassment, damage to someone's reputation, or result in insults, it may constitute an offense under both the Criminal Code (defamation and defamation by advertising) and the Computer Crime Act. This also includes situations involving impersonation, forgery, or using another person’s picture to engage in online conversations. Such behavior can lead to legal action, as it can harm the individual’s dignity and personal rights.
4.) Computer Crime Act (Computer Act)
The Computer Act, which applies to devices such as desktop computers, notebook computers, smartphones, and other systems controlled by computer technology, was enacted to regulate crimes that occur through the use of computers. This law aims to control and prevent offenses related to computer usage, and individuals who violate its provisions are subject to penalties as specified in the Act.
In today’s digital age, many people use computers and smartphones for personal benefit, but some may misuse these devices to harm others. News reports often cover incidents of computer crimes, some of which cause significant damage. To address these issues, the law provides a framework for regulating such activities, as the use of computers is closely integrated into our daily lives. Online information may include both true and false content, and there are deliberate efforts to spread distorted or fabricated information, as well as attempts to damage systems and cause harm to individuals and the public. As a result, the Computer Crime Act plays a crucial role in ensuring accountability. Currently, Thailand enforces two versions of the Computer Crime Act: the original Act (B.E. 2550) and its amended version (Edition 2, 2017).
4.1 Computer Crime Act B.E. 2550
The first Computer Crime Act, enacted in 2007, was designed to establish order and take swift action against offenders to maintain peace and order in society. As outlined in Section 14, Paragraph 1, it originally stated: "The introduction into a computer system of false computer data, whether in whole or in part, by any person who creates false or misleading computer data that is likely to cause damage to another person or the public shall be liable to imprisonment not exceeding five years or a fine not exceeding one hundred thousand baht, or both." This provision covers a broad range of offenses and carries significant penalties, as the intent of the Computer Crime Act is to protect societal peace and order, with a strong focus on preventing and punishing cybercrime.
4.2 Computer Crime Act (No. 2) B.E. 2017
The second amendment to the Computer Crime Act, enacted in 2017, introduced significant changes to Section 14(1), which addresses offenses involving the entry of distorted or false information into computer systems. It states: "Anyone who maliciously enters distorted or false information into a computer system, which is likely to cause damage to the public, is committing an offense and is subject to punishment."
This provision is often cited in cases of defamation via social media or other digital platforms, where messages sent via computers or mobile phones may also constitute an offense under the Computer Crime Act. However, there is a distinction between defamation under the Criminal Code and offenses under the Computer Crime Act. Defamation on the internet, if unrelated to national security or public order, is not considered an offense under Section 14(1) of the Computer Crime Act.
One of the key differences between the 2017 version and the original 2007 Act is the removal of defamation from the scope of offenses under the Computer Crime Act. Previously, defamation via computer systems was treated as an offense under the Act, even if the parties later reached a settlement. This often led to practical issues and numerous lawsuits. To address this, defamation was reclassified as an offense under the Criminal Code, which allows for more flexibility in resolving such cases, including the possibility of settlement or withdrawal of lawsuits without court intervention.
5.) Criminal Offenses under the Criminal Code
5.1 Defamation and its Penalties
Defamation is punishable under the Criminal Code, specifically Sections 326 and 327. These provisions make it illegal to defame another person to a third party, which causes the target to lose their reputation, be despised, or be hated.
• Section 326 states that anyone who defames another person in a way that could damage their reputation or cause them to be despised or hated, commits the offense of defamation. The penalty for this offense is imprisonment for up to one year, a fine of up to 20,000 baht, or both.
• Section 327 extends defamation to accusations made against a deceased person. If such an accusation causes the deceased’s family members—such as the father, mother, spouse, or child—to lose reputation or face public scorn, the same penalties apply. This section treats defamation of the deceased similarly to defamation of a living person, with a penalty of imprisonment for up to one year or a fine up to 20,000 baht, or both.
These sections aim to protect individuals from harmful actions that negatively impact their reputation, whether they are alive or deceased.
5.2 Defamation by Advertising
Defamation through advertising, as defined under Section 328, involves making defamatory statements public through any form of communication, including documents, drawings, films, broadcasts, or other means of publicity. This offense is punishable by imprisonment for up to two years. The higher penalty reflects the greater harm caused by defamation through wide-reaching public channels.
5.3 Expression of Honest Opinions
Section 329 clarifies that expressing honest opinions in specific contexts is not considered defamation. These exceptions include:
• Expressing opinions for the sake of fairness, self-defense, or to protect one’s own interests in a manner consistent with moral principles.
• Criticizing as an official performing their duties.
• Criticism related to matters of public interest or discussing products that affect consumers.
• Fairly reporting news about public proceedings, such as court cases or meetings.
In these cases, as long as the intent is honest and aligned with the specified purposes, it is not considered defamation.
5.4 No Penalty for Proven Truth
Under Section 330, if the defendant can prove that the defamatory statement was true, they will not be punished. However, the law prevents the use of truth as a defense in cases of personal defamation, where proving the truth would not benefit society. The law seeks to prevent the misuse of truth in defamation cases that may harm personal dignity or privacy.
5.5 Expression of Opinions in Court
As outlined in Section 331, a party or their lawyer is not guilty of defamation if they express an opinion or message during court proceedings for the benefit of their case. This is designed to protect legal professionals and litigants from defamation charges when presenting evidence or arguments in a courtroom.
5.6 Court Orders in Defamation Cases
Section 332 provides that in a defamation case where the defendant is found guilty, the court may order the following:
1. The seizure and destruction of objects containing defamatory content.
2. The publication of the judgement in one or more newspapers, at the defendant's expense.
This is intended to mitigate the damage caused by defamation and restore the reputation of the victim.
5.7 Compoundable Offense
According to Section 333, defamation is a compoundable offense. This means the victim or their representatives can reach an agreement to settle the matter out of court. If the victim dies before filing a complaint, the victim's parents, spouse, or children may file the complaint on their behalf.
6.) Civil Offenses
Online defamation can also be a civil offense, allowing the victim to seek damages through the civil courts. In addition to criminal penalties, the injured party may file for compensation if they can prove that the defamation caused harm to their life, body, property, reputation, or income.
Under the Civil and Commercial Code, the offender can be sued for compensation based on Section 420 or Section 423, depending on the specific circumstances of the case.
6.1 Compensation for Damage
Section 420 of the Civil and Commercial Code stipulates that if a person intentionally or negligently causes harm to another's body, freedom, or property, they must compensate the victim for the damage caused. The provision states:
“Whoever intentionally or negligently commits an unlawful act against another person, causing harm to their life, body, health, freedom, property, or any other right, is said to have committed a violation and must compensate the affected party for the damage caused.”
This section ensures that victims of online defamation, if proven to be caused by the offender's intentional or negligent actions, can seek redress for the damage to their reputation or other rights.
6.2 Dissemination of False Information Damaging Reputation or Livelihood
Section 423 of the Civil and Commercial Code addresses situations where an offender disseminates or publishes false information that harms another person's reputation, honor, or livelihood. Even if the offender was unaware that the information was false, they may still be liable for damages if they should have known the information was untrue. The provision states:
"Whoever publishes or disseminates news that is contrary to the truth and is damaging to the reputation or honor of another person or may harm their way of earning or progress, must compensate the victim for any damages resulting from that, even if they did not know the information was untrue, but should have known.
Sending false information without knowledge of its falsehood may not make the person liable, unless they or the recipient of the information stand to gain from it. In such cases, they could be held accountable for any resulting harm."
This provision ensures that individuals who circulate damaging false information, even unknowingly, can be held financially responsible if it can be shown that they should have known the truth and that their actions caused harm to the victim.
The differences between civil defamation and criminal defamation can be divided into three types, as follows:
1. Action
• Civil Defamation: This can occur regardless of intent. Whether the act is intentional or due to negligence, the responsible party must accept accountability if the action meets the criteria outlined in Section 423.
• Criminal Defamation: This requires intentional action. It does not apply if the act is unintentional or if there is no fault due to negligence.
2. The text stated
• Civil Defamation: Speaking or explaining a message, whether true or not, is not considered a violation, as long as the message is truthful. If the accusation is true, it does not harm the reputation of the accused. Defamation only occurs if the message is false.
• Criminal Defamation: Even if the message is true, the perpetrator can still be liable for offenses under Section 330. It is not necessary to prove whether the statement is true or false. The offense applies to slanderous statements, particularly regarding private matters that cannot be proven, and when the message does not serve the public interest.
3. Damage
• Civil Defamation: The law determines damages broadly. In addition to damage to reputation, it also includes harm to a person's livelihood, honor, or prosperity.
• Criminal Defamation: Section 326 stipulates that criminal defamation only covers damage to a person’s reputation, leading to despise or hatred. If the result of defamation causes harm beyond this, such as damage to a person’s livelihood, it is not applicable under criminal defamation laws.
To summarize the elements of the offense of defamation, they are:
1. Any person.
2. Defaming another person to a third party.
3. In a manner likely to cause the other person to lose their reputation or be despised or hated.
4. The perpetrator must have intention.
7.) How to File a Defamation Lawsuit Online:
If you are confident that the cyberbullying post contains all the elements of a crime, follow these steps to take legal action for online defamation:
Gather Relevant Evidence: Collect all evidence related to the online defamation or defamation by advertising. This includes screenshots, messages, posts, and any other materials that show the defamatory content.
Act Within the Statute of Limitations: Legal action for defamation must be taken within the 3-month statute of limitations, starting from the date you receive the defamatory message.
Identify the Perpetrator: It is essential to identify the individual responsible for the defamation. If needed, seek legal advice to assist in identifying and collecting evidence against the perpetrator.
Decide on Legal Action: After gathering sufficient evidence, decide whether to pursue a civil or criminal case. Alternatively, you may file a report at the police station.
File a Police Report: You can file a defamation complaint at the police station where the incident is known. This can be done free of charge, and the police will begin the investigation. They may first attempt to mediate and help both parties reach an agreement.
Police Mediation and Referral to Court: If mediation fails and the parties cannot come to an agreement, the police will refer the case to a criminal court. Be aware that the court process can take a significant amount of time.
Steps and Evidence Required to File a Defamation Lawsuit:
• Evidence of defamation: Screenshots, posts, or any content that constitutes defamation.
• Proof of harm: Documentation of how the defamation has damaged your reputation or caused emotional distress.
• Identification of the perpetrator: Any efforts made to identify the individual responsible for the defamation.
The steps and evidence required to file a defamation lawsuit are as follows:
7.1 Witnesses
One of the crucial pieces of evidence in a defamation case is the testimony of witnesses or third parties who were aware of the defamatory messages. Third parties who saw the online bullying can be asked to testify. Witnesses can meet with the police officers along with the victim to provide statements and document the incident, which will serve as evidence.
7.2 Evidence
Evidence of the defamatory messages on platforms like Facebook or other social media is vital in a defamation case. This evidence must detail the message, including the date and time it was posted. A clear screenshot of the post, the name of the person who posted it, and any comments, likes, shares, or tags associated with the post are important. This helps demonstrate the widespread nature of the damage caused, and it can also highlight the intent to defame, especially in cases involving advertising.
7.3 Defamation Lawsuit Expenses
The expenses involved in a defamation lawsuit will vary depending on the complexity of the case and the amount of evidence. Initial costs can include consultation fees, travel expenses, accommodation fees, and fees for drafting petitions, lawsuits, or statements. Legal fees also apply, although they do not include court fees. These expenses should be considered before proceeding with the lawsuit.
There may be an initial cost of approximately 20,000-35,000 baht, or the cost may be calculated as a percentage of the amount being claimed in damages from the other party.
Conclusion and Recommendations
Online defamation has become a significant issue that impacts both individuals and Thai society as a whole. With the rapid advancement of technology, people can easily express their opinions, share information, and disseminate content. While expressing opinions and criticisms in good faith, in line with the law and the rights guaranteed by the Constitution, is generally lawful, it is important to exercise these rights responsibly. If actions exceed acceptable boundaries and infringe upon the rights of others, those who are harmed by such posts may seek legal action.
Online defamation is a problem that requires collective effort to address. Citizens must be aware of the consequences and use the internet responsibly. The government must enact effective laws and establish monitoring mechanisms to address this issue, while the private sector should support campaigns to promote ethical internet usage. Together, we must work towards creating a safer online environment where respect and consideration for others are paramount.
After reading this article, if you believe that you meet the criteria and are looking for assistance in dealing with online defamation, contact Ravenwing for a consultation. We will help you understand your options and guide you through the process quickly and reliably, ensuring that your infringed rights are restored to justice.
Disclaimer: Informational Article, Not Legal Advice
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