Social Media and Lese Majeste

in

Thailand

Jade Donavanik Dean Graduate School of Law

Siam University Thailand

How many types of a conversation about

someone can one have?

Understanding the Issue

Please ask yourselves the following

question.

• So many types

• Two types – positive and negative

Understanding the Issue

Positive – no problem

Negative – adverse consequences

Two kinds of negative – criticism and

defamation

Understanding the Issue

What is the difference between a conversation that

is a criticism and defamation?

A criticism may be encouraging or discouraging,

optimistic or pessimistic, constructive or

unconstructive etc.

The mere nature of criticism is not to do harm, but

to make sharp opinion.

Understanding the Issue

A defamation shares neither good nor bad nature with

criticism since its nature is founded on bad intention.

The action of defaming is to impute or to vilify a

person, with true or false expressions including but

not limited to making statements verbally or in writing.

By the same token, insult shares the nature of bad

intention with defamation, but is an action with

rudeness, if not barbaric by one person against

another.

The King’s Speech

A Speech made by His Majesty King

Bhumibhol Adulyadej on 4 December 2005

I would like to reveal that to criticize me is

acceptable. Sometimes may be wrong, but

know that it is wrong. If they say criticizing the

King is wrong, then ask them what is wrong. If

they don’t know, they are in trouble. Therefore,

that which is said a criticism is considered

offending the King – you may offend the King.

The King’s Speech

But if they offended wrongly, they will be

bombed by the people. It is a matter that they

should know how to criticize. If they criticized

rightly, no one reprimands, but if they criticized

wrongly, this is not good. But when one says no

criticism, no offending since the Constitution

says so, in the end the King is having a difficulty,

terrible, being in a difficult position.

The King’s Speech

Since this demonstrated that if there may be no

criticism, that means the King must be criticized,

must be offended, but is not allowed to be

offended, the King is at a loss. Since if one may

not offend, the King is at a loss. The King is not

a good person. Of which if we are all Thais,

firstly, they dare not to, second, they are kind to

the King; therefore, they dare not to.

The King’s Speech

They do not want to offend. But there are those

foreigners, very often, offended the King. They

even laughed that the King of Thailand and all the

Thais are terrible. No one can offend them. At

last, if there may be no offending, we are at a

loss. Therefore, in some occasion, please offend

so that we will know who is good, who is bad.

The King’s Speech

If someone offends the King, the King is in

trouble. The King is in trouble in many ways. In

one way, foreign countries are saying that in

Thailand you may not criticize the King, you will

be in trouble. Foreigners say in Thailand if the

King is scolded, the person who scolded is

imprisoned. … Actually, the King never told that

they be imprisoned.

The King’s Speech

Since those other reigns, those committed

treason were never asked to be put in prison. No

punishment. King Rama the 6th did not punish

those treasons. Until King Rama the 9th whoever

committed treason, which there were never the

real one. It was done the same way, no

imprisonment. If there was an imprisonment, I

asked that they be released. If they were not

imprisoned, then there ought not to be a lawsuit

because it would bring trouble to the King.

The King’s Speech

The person who was scolded is in trouble. The

law likes that someone be sued, someone be

imprisoned. Lawyers taught the Prime Minister

that there must be a lawsuit, a punishment. I

would like to teach the Prime Minister that if

someone told you to punish them. Do not punish

them. When you punished them, it is not you the

Prime Minister who is in trouble, but me the King.

May the King be Criticized

The King may be criticized – according to His

Majesty King Bhumibhol.

If the King may be criticized, all the royal family

members or all those within the court of the

institution called monarchy may be criticized

as well.

Thai Penal Code

Article 112 of the Thai Penal Code is directed

towards whoever defames, insults, or feuds

the King, the Queen, the Heir Apparent, and

the Regent. A person committed the said

offence shall be imprisoned three to fifteen

years.

Lese Majeste

Popularly, people around the world called a law like Article 112 “lese majesty” or “lese majeste.”

Broad and perhaps archaic term, this may lead to vast attacks for its archaism concept.

This is not to say that there is no more majestic supremacy, but in the world of modernity, it turns out to rely upon the senses of the beholders.

Lese Majeste

The preservation of such concept as an untouchable supreme power institution is challengeable.

Lese majesty needs a contemporary concept if those who would like to preserve it insist to call it with the same phrase “lese majesty.”

Otherwise, the offence or the wrong action or anything of such substance needs specific names to them – defaming the King, insulting the Queen, feuding the Heir-Apparent or any of those to the Regent.

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Defamation

Throughout the world there are legal doctrines and

concepts on defamation and insult.

For example, under the Thai Penal Code Article 326 a

defamation is an offence or a crime in which one

person vilifies the other person before the third person

in a manner that may cause the said other person to

be reputably impaired, scorned, or hated.

This and a legal provision regarding insult are

protections for all ordinary people, whoever they are.

Defamation

Nonetheless, defaming or insulting an officer

in charge or a judge may activate a higher

punishment as compared to the same kind of

wrong action against a plain ordinary person

since it is deemed that these people act on

behalf of the state; therefore, a crime against

them is considered to a minimal extent a

crime against the state.

Defamation

Likewise, such same crime against the head

of state, especially the King – a figure that is

respectful for most, revered for many or

enshrined for scores of people is determined

to a maximum extent a crime against the

state that begets higher punishment.

Defamation

Defaming ordinary person, slander –

imprisonment of not more than 1 year, libel –

imprisonment of not more than 2 years.

Insulting an officer in charge, imprisonment

of not more than 1 year.

Insulting a judge on the bench –

imprisonment from 1 to 7 years.

Insulting the King, imprisonment from 3 to 15

years.

Defamation

Defaming the King, Queen, the Queen’s Spouse,

the Heir Apparent or the Head of State of other

countries, imprisonment from 1 to 7 years.

Insulting the Envoy, imprisonment from 6

months to 5 years.

Feuding an ordinary person, nothing happens,

but threatening – imprisonment of not more

than 1 month, insulting – imprisonment of not

more than 1 month

Uncle SMS Case

In mid-2010, Somkiat Khrongwattanasuk

made a denunciation before the National

Police Headquarters’ Technology-Related

Offence Suppression Division (TROSD) that

four short messages were sent to his mobile

phone by an unknown person and their

contents were likely to constitute an offence.

The TROSD then set up an investigation

team.

Uncle SMS Case

From the investigation, the team learned that

Ampon owned the number from which the

messages were sent, and successfully

applied to the Criminal Court for a warrant of

arrest on 29 July. Ampon was arrested at his

rented house in Samut Prakan, and police

seized three of his mobile phones together

with their supplementary equipment.

Uncle SMS Case

The Criminal Court placed Ampon in

detention at the Khlong Prem Prison and

turned down his relatives' request for

provisional release. However, Ampon's

relatives lodged a successful appeal with the

Court of Appeal. Ampon was detained for

sixty-three days prior to the release granted

by the Court of Appeal on 4 October 2010.

Uncle SMS Case

Police Lieutenant General Tha-ngai

Prasajaksatru, chief of the police team arresting

Ampon, remarked that in the course of the

inquiry, Ampon pleaded not guilty, but admitted

that the exhibited mobile phones were his. He

stated that he had not used them for a long

time and did not know how to send a text

message.

Uncle SMS Case

Tha-ngai also said that he believes Ampon

was a member of the United Front for

Democracy Against Dictatorship (UDD) or

Red Shirts, and that the Internal Security

Operations Command has blacklisted him.

Uncle SMS Case

On 18 January 2011, a public prosecutor filed

a charge against Ampon before the Criminal

Court. The charge stated that Ampon, using

his mobile phone, sent four different short

messages to Somkiat at different times:

Uncle SMS Case

9 May 2010: Put this on billboards

urgently: ‘the evil queen refuses to return

the diamond to Saudi.’ Her dickhead

dynasty will surely collapse.

11 May 2010: The evil queen, the iron

cunt, if you are brave enough, send your

damn army to crack down on us. You,

master of whores. Family of the bad

people.

Uncle SMS Case

12 May 2010: His Majesty dickhead king,

the iron cunt queen, both of them ordered

the killing of people. We will stamp on their

faces with our heels.

22 May 2010: Please tell his majesty

dickhead king, the iron cunt queen and all of

their children, you'll all die.

Uncle SMS Case

The public prosecutor applied to the Criminal

Court to impose on Ampon the penalties under

the Criminal Code, section 112 (insulting or

bringing into hatred or contempt the King and

Queen), and the Act on Computer-Related

Offences, BE 2550 (2007), section 14 (2) and (3)

(bringing into a computer system certain forged or

false information likely to jeopardise another

person, the general public or national security).

Uncle SMS Case

The Criminal Court held four hearings on 23,

27, 28 and 30 September 2011. The first three

hearings covered the prosecution evidence,

and the fourth, the defence evidence.

Uncle SMS Case

The public prosecutor introduced as

witnesses Somkiat Khrongwatthanasuk,

the police officers in charge of the

investigation, two daughters of Ampon, and

two mobile use information collectors from

DTAC and TRUE MOVE

Uncle SMS Case

The witnesses testified that Somkiat received

four messages from an unknown number

and then made a denunciation to the police,

and that the police officers, having held an

examination with the participation of the

mobile phone service providers, believed that

the number in question was owned by

Ampon and its International Mobile

Equipment Identity could not be falsified.

Uncle SMS Case

In presenting his evidence, Ampon, still

pleading not guilty, introduced his counsel

and relatives as witnesses to prove his

innocence as well as his loyalty and respect

to the King and Queen.[5] His lawyers focused

on technical issues in his defence,

demonstrating how a false phone number

could have been created in Ampon's name.[

Uncle SMS Case

The Criminal Court found that: "The prosecutor could

not expressly prove that the defendant sent the

messages as mentioned in the charge ... but the

grounds for his ability to introduce any eyewitness

are the serious nature of the offence in question to

such an extent that a person intending to commit it

would conduct the commission in absence of others

... It needs to derive the guilt from the circumstantial

evidence introduced by the prosecutor ...

Uncle SMS Case

And every circumstance evidence adduced by

the prosecutor could firmly, proximately and

reasonably indicate all circumstances giving

rise to an absolute belief that during the

periods of time aforementioned, the defendant

sent the four messages as accused ...

Uncle SMS Case

Since the contents of the said messages are an

insult and expression of malice aforethought

towards Their Majesties the King and Queen, are

defaming them in a manner likely to negatively

affect their grace and bring them into hatred and

contempt ... and are of false nature in contradiction

to the fact already learnt by the people throughout

the nation that Their Majesties are full of mercy ...

the defendant is thus guilty as charged."

Uncle SMS Case

The Court held that the four messages

constituted four acts concurrently in violation of

the Criminal Code and the Act on Computer-

Related Offences, BE 2550 (2007), and

delivered a sentence only on a basis of the

Criminal Code, the most serious law, that the

Defendant was to be imprisoned for five years

on account of each act (twenty years in total).

Uncle SMS Case

Ampon filed an appeal against the judgment of

the Criminal Court, and was detained pending

appeal. He applied for a provisional release,

but the Court of Appeal refused his application.

He then lodged a final appeal with the

Supreme Court of Justice against the Court of

Appeal’s order of refusal, but his final appeal

was also turned down.

Uncle SMS Case

Seeing no hope, he also gave up the appeal

against the Criminal Court’s judgment and

sought a royal pardon instead, causing the

judgment to be final in process. The Criminal

Court issued a warrant of finality on 3 April

2012, at which time Ampon was subjected to

imprisonment as sentenced.

Uncle SMS Case

In the morning of 8 May 2012, Ampon was found dead in

the Khlong Prem Prison. The cause of death was initially

unknown. According to Thailand's Code of Criminal

Procedure, Ampon’s death, occurring whilst the

deceased was in official custody, was an unnatural death

and required an inquest, postmortem examination and

inquiry. The next day, the Institute’s spokesperson stated

that the cause of Ampon’s death was lung canver which

spread throughout his body and brought about heart

failure.